# Official Journal C 138/28 M

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 138 |
| | |
| English edition | Information and Notices | Volume 6528 March 2022 |

ISSN 1977-091X

Official Journal

of the European Union

C 138

English edition

Information and Notices

Volume 6528 March 2022

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2022/C 138/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |
| | Court of Justice |
| 2022/C 138/02 | Decision of the Court of Justice of 1 February 2022 on official holidays and judicial vacations | 2 |
| | General Court |
| 2022/C 138/03 | Decision of the General Court of 9 February 2022 on judicial vacations | 3 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2022/C 138/01

Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

Official Journal of the European Union

1

Court of Justice

2022/C 138/02

Decision of the Court of Justice of 1 February 2022 on official holidays and judicial vacations

2

General Court

2022/C 138/03

Decision of the General Court of 9 February 2022 on judicial vacations

3

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2022/C 138/04 | Case C-191/21: Order of the Court (Seventh Chamber) of 10 February 2022 (request for a preliminary ruling from the Cour administrative d’appel de Lyon — France) — Ministre de l’Economie, des Finances et de la Relance v Les Anges d’Eux SARL, Echo 5 SARL, Cletimmo SAS (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 392 — Margin taxation scheme — Scope — Supply of buildings and building land purchased for the purpose of resale — Taxable person for whom the VAT on the purchase of buildings was not deductible — Resale subject to VAT — Concept of building land) | 4 |
| 2022/C 138/05 | Case C-460/21: Order of the Court (Eighth Chamber) of 7 February 2022 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Vapo Atlantic SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Excise duties — Directive 2008/118/EC — Article 1(2) — Levying, for specific purposes, of other indirect taxes — Specific purposes — Definition — Financing of a public undertaking holding the concession contract in respect of the national road network — Objectives of environmental sustainability and reducing accidents — Purely budgetary purpose — Refusal to reimburse a tax based on unjust enrichment — Conditions) | 5 |
| 2022/C 138/06 | Case C-745/21: Request for a preliminary ruling from the Rechtbank den Haag zittingsplaats Zwolle (Netherlands) lodged on 2 December 2021 — L.G. v Staatssecretaris van Justitie en Veiligheid | 5 |
| 2022/C 138/07 | Case C-760/21: Request for a preliminary ruling from the Verwaltungsgericht Wien (Austria) lodged on 10 December 2021 — Kwizda Pharma GmbH | 6 |
| 2022/C 138/08 | Case C-765/21: Request for a preliminary ruling from the Tribunale ordinario di Padova (Italy) lodged on 13 December 2021 — D.M. v Azienda Ospedale-Università di Padova | 8 |
| 2022/C 138/09 | Case C-768/21: Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 14 December 2021 — TR v Land Hessen | 9 |
| 2022/C 138/10 | Case C-770/21: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 13 December 2021 — OGL-Food Trade Lebensmittelvertrieb GmbH v Direktor na Teritorialna direktsia Mitnitsa Plovdiv pri Agentsia Mitnitsi | 10 |
| 2022/C 138/11 | Case C-773/21 P: Appeal brought on 9 December 2021 by AV, AW against the judgment of the General Court (Eighth Chamber) delivered on 6 October 2021 in Case T-43/20, AV and AW v Parliament | 12 |
| 2022/C 138/12 | Case C-776/21: Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 15 December 2021 — EV v Alltours Flugreisen GmbH | 13 |
| 2022/C 138/13 | Case C-797/21: Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 15 December 2021 — Y.YA. v K.P. | 13 |
| 2022/C 138/14 | Case C-805/21: Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 20 December 2021 — Criminal proceedings against ZhU and RD | 14 |
| 2022/C 138/15 | Case C-806/21: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 December 2021 — Criminal proceedings against TF | 14 |
| 2022/C 138/16 | Case C-809/21: Request for a preliminary ruling from the Rechtbank Noord-Holland zittingsplaats Haarlem (Netherlands) lodged on 21 December 2021 — Nokia Solutions and Networks Oy v Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven | 15 |
| 2022/C 138/17 | Case C-820/21: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 28 December 2021 — Vinal AD v Direktor na Agentsia Mitnitsi | 15 |
| 2022/C 138/18 | Case C-829/21: Request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 24 December 2021 — TE, RU, represented for legal purposes by TE v Stadt Frankfurt am Main | 16 |
| 2022/C 138/19 | Case C-833/21: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 31 December 2021 — Endesa Generación, S.A.U. v Tribunal Económico Administrativo Central | 17 |
| 2022/C 138/20 | Case C-16/22: Request for a preliminary ruling from the Oberlandesgericht Graz (Austria) lodged on 6 January 2022 — Staatsanwaltschaft Graz v MS | 17 |
| 2022/C 138/21 | Case C-30/22: Request for a preliminary ruling from the Administrativen sad Veliko Tarnovo (Bulgaria) lodged on 12 January 2022 — DV v Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut — Veliko Tarnovo | 18 |
| 2022/C 138/22 | Case C-33/22: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 January 2022 — Datenschutzbehörde (Austria) | 19 |
| 2022/C 138/23 | Case C-75/22: Action brought on 4 February 2022 — European Commission v Czech Republic | 19 |
| 2022/C 138/24 | Case C-82/22 P: Appeal brought on 7 February 2022 by Jean-François Jalkh against the judgment of the General Court (Sixth Chamber) delivered on 1 December 2021 in Case T-230/21 Jalkh v Parliament | 21 |
| | General Court |
| 2022/C 138/25 | Case T-13/22: Action brought on 3 January 2022 — Loutsou v EUIPO (POLIS LOUTRON) | 22 |
| 2022/C 138/26 | Case T-24/22: Action brought on 14 January 2022 — Bensoussan v EUIPO — Lulu’s Fashion Lounge (LOULOU STUDIO) | 23 |
| 2022/C 138/27 | Case T-36/22: Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (PERFECT FARMA CERVIRON) | 23 |
| 2022/C 138/28 | Case T-37/22: Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (Cerviron) | 24 |
| 2022/C 138/29 | Case T-38/22: Action brought on 20 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (CERVIRON Perfect Care) | 25 |
| 2022/C 138/30 | Case T-39/22: Action brought on 19 January 2022 — OA v Parliament | 25 |
| 2022/C 138/31 | Case T-49/22: Action brought on 27 January 2022 — Romania v Commission | 26 |
| 2022/C 138/32 | Case T-58/22: Action brought on 31 January 2022 — Labaš v EUIPO (FRESH) | 28 |
| 2022/C 138/33 | Case T-67/22: Action brought on 1 February 2022 — Guma Holdings v EUIPO — X-Trade Brokers Dom Maklerski (XTRADE) | 28 |
| 2022/C 138/34 | Case T-70/22: Action brought on 3 February 2022 — Novasol v ECHA | 29 |
| 2022/C 138/35 | Case T-74/22: Action brought on 8 February 2022 — Siemens v Parliament | 30 |
| 2022/C 138/36 | Case T-77/22: Action brought on 9 February 2022 — Asesores Comunitarios v Commission | 31 |
| 2022/C 138/37 | Case T-80/22: Action brought on 14 February 2022 — OF v Commission | 32 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2022/C 138/04

Case C-191/21: Order of the Court (Seventh Chamber) of 10 February 2022 (request for a preliminary ruling from the Cour administrative d’appel de Lyon — France) — Ministre de l’Economie, des Finances et de la Relance v Les Anges d’Eux SARL, Echo 5 SARL, Cletimmo SAS (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 392 — Margin taxation scheme — Scope — Supply of buildings and building land purchased for the purpose of resale — Taxable person for whom the VAT on the purchase of buildings was not deductible — Resale subject to VAT — Concept of building land)

4

2022/C 138/05

Case C-460/21: Order of the Court (Eighth Chamber) of 7 February 2022 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Vapo Atlantic SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Excise duties — Directive 2008/118/EC — Article 1(2) — Levying, for specific purposes, of other indirect taxes — Specific purposes — Definition — Financing of a public undertaking holding the concession contract in respect of the national road network — Objectives of environmental sustainability and reducing accidents — Purely budgetary purpose — Refusal to reimburse a tax based on unjust enrichment — Conditions)

5

2022/C 138/06

Case C-745/21: Request for a preliminary ruling from the Rechtbank den Haag zittingsplaats Zwolle (Netherlands) lodged on 2 December 2021 — L.G. v Staatssecretaris van Justitie en Veiligheid

5

2022/C 138/07

Case C-760/21: Request for a preliminary ruling from the Verwaltungsgericht Wien (Austria) lodged on 10 December 2021 — Kwizda Pharma GmbH

6

2022/C 138/08

Case C-765/21: Request for a preliminary ruling from the Tribunale ordinario di Padova (Italy) lodged on 13 December 2021 — D.M. v Azienda Ospedale-Università di Padova

8

2022/C 138/09

Case C-768/21: Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 14 December 2021 — TR v Land Hessen

9

2022/C 138/10

Case C-770/21: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 13 December 2021 — OGL-Food Trade Lebensmittelvertrieb GmbH v Direktor na Teritorialna direktsia Mitnitsa Plovdiv pri Agentsia Mitnitsi

10

2022/C 138/11

Case C-773/21 P: Appeal brought on 9 December 2021 by AV, AW against the judgment of the General Court (Eighth Chamber) delivered on 6 October 2021 in Case T-43/20, AV and AW v Parliament

12

2022/C 138/12

Case C-776/21: Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 15 December 2021 — EV v Alltours Flugreisen GmbH

13

2022/C 138/13

Case C-797/21: Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 15 December 2021 — Y.YA. v K.P.

13

2022/C 138/14

Case C-805/21: Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 20 December 2021 — Criminal proceedings against ZhU and RD

14

2022/C 138/15

Case C-806/21: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 December 2021 — Criminal proceedings against TF

14

2022/C 138/16

Case C-809/21: Request for a preliminary ruling from the Rechtbank Noord-Holland zittingsplaats Haarlem (Netherlands) lodged on 21 December 2021 — Nokia Solutions and Networks Oy v Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven

15

2022/C 138/17

Case C-820/21: Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 28 December 2021 — Vinal AD v Direktor na Agentsia Mitnitsi

15

2022/C 138/18

Case C-829/21: Request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 24 December 2021 — TE, RU, represented for legal purposes by TE v Stadt Frankfurt am Main

16

2022/C 138/19

Case C-833/21: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 31 December 2021 — Endesa Generación, S.A.U. v Tribunal Económico Administrativo Central

17

2022/C 138/20

Case C-16/22: Request for a preliminary ruling from the Oberlandesgericht Graz (Austria) lodged on 6 January 2022 — Staatsanwaltschaft Graz v MS

17

2022/C 138/21

Case C-30/22: Request for a preliminary ruling from the Administrativen sad Veliko Tarnovo (Bulgaria) lodged on 12 January 2022 — DV v Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut — Veliko Tarnovo

18

2022/C 138/22

Case C-33/22: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 January 2022 — Datenschutzbehörde (Austria)

19

2022/C 138/23

Case C-75/22: Action brought on 4 February 2022 — European Commission v Czech Republic

19

2022/C 138/24

Case C-82/22 P: Appeal brought on 7 February 2022 by Jean-François Jalkh against the judgment of the General Court (Sixth Chamber) delivered on 1 December 2021 in Case T-230/21 Jalkh v Parliament

Jalkh

Parliament

21

General Court

2022/C 138/25

Case T-13/22: Action brought on 3 January 2022 — Loutsou v EUIPO (POLIS LOUTRON)

22

2022/C 138/26

Case T-24/22: Action brought on 14 January 2022 — Bensoussan v EUIPO — Lulu’s Fashion Lounge (LOULOU STUDIO)

23

2022/C 138/27

Case T-36/22: Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (PERFECT FARMA CERVIRON)

23

2022/C 138/28

Case T-37/22: Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (Cerviron)

24

2022/C 138/29

Case T-38/22: Action brought on 20 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (CERVIRON Perfect Care)

25

2022/C 138/30

Case T-39/22: Action brought on 19 January 2022 — OA v Parliament

25

2022/C 138/31

Case T-49/22: Action brought on 27 January 2022 — Romania v Commission

26

2022/C 138/32

Case T-58/22: Action brought on 31 January 2022 — Labaš v EUIPO (FRESH)

28

2022/C 138/33

Case T-67/22: Action brought on 1 February 2022 — Guma Holdings v EUIPO — X-Trade Brokers Dom Maklerski (XTRADE)

28

2022/C 138/34

Case T-70/22: Action brought on 3 February 2022 — Novasol v ECHA

29

2022/C 138/35

Case T-74/22: Action brought on 8 February 2022 — Siemens v Parliament

30

2022/C 138/36

Case T-77/22: Action brought on 9 February 2022 — Asesores Comunitarios v Commission

31

2022/C 138/37

Case T-80/22: Action brought on 14 February 2022 — OF v Commission

32

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| EN | |
| --- | --- |

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 28.3.2022 | EN | Official Journal of the European Union | C 138/1 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/1

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Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

(2022/C 138/01)

Last publication

OJ C 128, 21.3.2022

Past publications

OJ C 119, 14.3.2022

OJ C 109, 7.3.2022

OJ C 95, 28.2.2022

OJ C 84, 21.2.2022

OJ C 73, 14.2.2022

OJ C 64, 7.2.2022

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

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Court of Justice

| 28.3.2022 | EN | Official Journal of the European Union | C 138/2 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/2

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DECISION OF THE COURT OF JUSTICE

of 1 February 2022

on official holidays and judicial vacations

(2022/C 138/02)

THE COURT

Having regards to Article 24(2), (4) and (6) of the Rules of Procedure,

Whereas it is necessary, in accordance with that provision, to establish the list of official holidays and to set the dates of the judicial vacations,

HAS ADOPTED THIS DECISION:

Article 1

The list of official holidays within the meaning of Article 24(4) and (6) of the Rules of Procedure is established as follows:

| — | New Year’s Day, |
| --- | --- |

—

New Year’s Day,

| — | Easter Monday, |
| --- | --- |

—

Easter Monday,

| — | 1 May, |
| --- | --- |

—

1 May,

| — | 9 May, |
| --- | --- |

—

9 May,

| — | Ascension, |
| --- | --- |

—

Ascension,

| — | Whit Monday, |
| --- | --- |

—

Whit Monday,

| — | 23 June, |
| --- | --- |

—

23 June,

| — | 15 August, |
| --- | --- |

—

15 August,

| — | 1 November, |
| --- | --- |

—

1 November,

| — | 25 December, |
| --- | --- |

—

25 December,

| — | 26 December. |
| --- | --- |

—

26 December.

Article 2

For the period from 1 November 2022 to 31 October 2023, the dates of the judicial vacations within the meaning of Article 24(2) and (6) of the Rules of Procedure are as follows:

| — | Christmas 2022: from Monday 19 December 2022 to Sunday 8 January 2023 inclusive, |
| --- | --- |

—

Christmas 2022: from Monday 19 December 2022 to Sunday 8 January 2023 inclusive,

| — | Easter 2023: from Monday 3 April 2023 to Sunday 16 April 2023 inclusive, |
| --- | --- |

—

Easter 2023: from Monday 3 April 2023 to Sunday 16 April 2023 inclusive,

| — | Summer 2023: from Sunday 16 July 2023 to Thursday 31 August 2023 inclusive. |
| --- | --- |

—

Summer 2023: from Sunday 16 July 2023 to Thursday 31 August 2023 inclusive.

Article 3

This decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Luxembourg, 1 February 2022.

Registrar

A. CALOT ESCOBAR

President

K. LENAERTS

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General Court

| 28.3.2022 | EN | Official Journal of the European Union | C 138/3 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/3

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DECISION OF THE GENERAL COURT

of 9 February 2022

on judicial vacations

(2022/C 138/03)

THE GENERAL COURT

Having regard to Article 41(2) of the Rules of Procedure,

HAS DECIDED:

Article 1

For the judicial year beginning on 1 September 2022, the dates of the judicial vacations within the meaning of Article 41(2) and (6) of the Rules of Procedure are as follows:

| — | Christmas 2022: from Monday 19 December 2022 to Sunday 8 January 2023 inclusive; |
| --- | --- |

—

Christmas 2022: from Monday 19 December 2022 to Sunday 8 January 2023 inclusive;

| — | Easter 2023: from Monday 3 April 2023 to Sunday 16 April 2023 inclusive; |
| --- | --- |

—

Easter 2023: from Monday 3 April 2023 to Sunday 16 April 2023 inclusive;

| — | Summer 2023: from Sunday 16 July 2023 to Thursday 31 August 2023 inclusive. |
| --- | --- |

—

Summer 2023: from Sunday 16 July 2023 to Thursday 31 August 2023 inclusive.

Article 2

This decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Luxembourg, 8 March 2022.

Registrar

E. COULON

President

M. VAN DER WOUDE

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 28.3.2022 | EN | Official Journal of the European Union | C 138/4 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/4

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Order of the Court (Seventh Chamber) of 10 February 2022 (request for a preliminary ruling from the Cour administrative d’appel de Lyon — France) — Ministre de l’Economie, des Finances et de la Relance v Les Anges d’Eux SARL, Echo 5 SARL, Cletimmo SAS

(Case C-191/21) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 392 - Margin taxation scheme - Scope - Supply of buildings and building land purchased for the purpose of resale - Taxable person for whom the VAT on the purchase of buildings was not deductible - Resale subject to VAT - Concept of ‘building land’)

(2022/C 138/04)

Language of the case: French

Referring court

Cour administrative d’appel de Lyon

Parties to the main proceedings

Appellant: Ministre de l’Economie, des Finances et de la Relance

Respondents: Les Anges d’Eux SARL, Echo 5 SARL, Cletimmo SAS

Operative part of the order

Article 392 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax is to be interpreted as precluding the application of the margin taxation scheme to transactions involving the supply of building land where that purchased land which has been built on has become, between the time of its purchase and the time at which it is resold by the taxable person, building land; however, it is to be interpreted as not precluding the application of that scheme to transactions involving the supply of building land where that land has been subject, between the time of its purchase and the time at which it is resold by the taxable person, to alterations such as its partitioning into lots.

---

(1)  Date of filing: 25.3.2021.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/5 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/5

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Order of the Court (Eighth Chamber) of 7 February 2022 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Vapo Atlantic SA v Autoridade Tributária e Aduaneira

(Case C-460/21) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Excise duties - Directive 2008/118/EC - Article 1(2) - Levying, for specific purposes, of other indirect taxes - ‘Specific purposes’ - Definition - Financing of a public undertaking holding the concession contract in respect of the national road network - Objectives of environmental sustainability and reducing accidents - Purely budgetary purpose - Refusal to reimburse a tax based on unjust enrichment - Conditions)

(2022/C 138/05)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Vapo Atlantic SA

Defendant: Autoridade Tributária e Aduaneira

Operative part of the order

By order of the Court of 7 February 2022, the Court (Eighth Chamber) rules:

| 1. | Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as meaning that a charge, the revenue from which is allocated, in a generic manner, to a public undertaking holding the concession contract for the national road network and the structure of that charge does not indicate an intention to discourage the consumption of the main road fuels, does not pursue ‘specific purposes’ within the meaning of that provision. |
| --- | --- |

1.

Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as meaning that a charge, the revenue from which is allocated, in a generic manner, to a public undertaking holding the concession contract for the national road network and the structure of that charge does not indicate an intention to discourage the consumption of the main road fuels, does not pursue ‘specific purposes’ within the meaning of that provision.

| 2. | EU law must be interpreted as precluding national authorities from being able to justify their refusal to reimburse an indirect charge that is contrary to Directive 2008/118 by assuming that that charge has been passed on to third parties and, as a result, that the taxable person has been unjustly enriched. |
| --- | --- |

2.

EU law must be interpreted as precluding national authorities from being able to justify their refusal to reimburse an indirect charge that is contrary to Directive 2008/118 by assuming that that charge has been passed on to third parties and, as a result, that the taxable person has been unjustly enriched.

---

(1)  Date lodged: 26/7/2021.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/5 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/5

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Request for a preliminary ruling from the Rechtbank den Haag zittingsplaats Zwolle (Netherlands) lodged on 2 December 2021 — L.G. v Staatssecretaris van Justitie en Veiligheid

(Case C-745/21)

(2022/C 138/06)

Language of the case: Dutch

Referring court

Rechtbank den Haag zittingsplaats Zwolle

Parties to the main proceedings

Applicant: L.G.

Defendant: Staatssecretaris van Justitie en Veiligheid

Questions referred

| 1. | Does EU law preclude, in the determination by the Member State responsible for examining an asylum application, the attribution of an independent significance, pursuant to a provision of national law, to the interests of a child with which the applicant was pregnant at the time the application was made? |
| --- | --- |

1.

Does EU law preclude, in the determination by the Member State responsible for examining an asylum application, the attribution of an independent significance, pursuant to a provision of national law, to the interests of a child with which the applicant was pregnant at the time the application was made?

| 2. | a. | Does Article 16(1) of Regulation No 349/2001 (1) preclude the application of this provision where the applicant’s spouse is legally resident in the Member State to which the application is made? |
| --- | --- | --- |

2.

a.

Does Article 16(1) of Regulation No 349/2001 (1) preclude the application of this provision where the applicant’s spouse is legally resident in the Member State to which the application is made?

| b. | If that is not the case, did the applicant’s pregnancy entail dependence, within the meaning of that provision, on the husband by whom she was pregnant? |
| --- | --- |

b.

If that is not the case, did the applicant’s pregnancy entail dependence, within the meaning of that provision, on the husband by whom she was pregnant?

| 3. | If EU law does not preclude, in the determination by the Member State responsible for examining an asylum application, the attribution of an independent significance, pursuant to a provision of national law, to the interests of an unborn child, can Article 16(1) of Regulation No 343/2003 apply to the relationship between the unborn child and the father of that unborn child who is legally resident in the Member State to which the application is made? |
| --- | --- |

3.

If EU law does not preclude, in the determination by the Member State responsible for examining an asylum application, the attribution of an independent significance, pursuant to a provision of national law, to the interests of an unborn child, can Article 16(1) of Regulation No 343/2003 apply to the relationship between the unborn child and the father of that unborn child who is legally resident in the Member State to which the application is made?

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(1)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/6 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/6

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Request for a preliminary ruling from the Verwaltungsgericht Wien (Austria) lodged on 10 December 2021 — Kwizda Pharma GmbH

(Case C-760/21)

(2022/C 138/07)

Language of the case: German

Referring court

Verwaltungsgericht Wien

Parties to the main proceedings

Complainant: Kwizda Pharma GmbH

Respondent authority: Landeshauptmann von Wien

Questions referred

The Verwaltungsgericht Wien refers to the Court of Justice the following questions concerning the interpretation of Regulation (EU) No 609/2013 (1) and of Directive 2002/46/EC: (2)

| 1(a) | In order to be categorised as a food for special medical purposes, must a product be demonstrably capable of achieving the claimed disease- or condition-specific results solely in the context of the dietary management indicated by that disease or condition with respect to the food-intake requirements of that condition or disease? |
| --- | --- |

1(a)

In order to be categorised as a food for special medical purposes, must a product be demonstrably capable of achieving the claimed disease- or condition-specific results solely in the context of the dietary management indicated by that disease or condition with respect to the food-intake requirements of that condition or disease?

| 1(b) | In that context, is dietary management to be assumed only in the case where a person changes his or her diet in such a way as to consume other or additional nutrients which are absorbed by the body by way of digestion? |
| --- | --- |

1(b)

In that context, is dietary management to be assumed only in the case where a person changes his or her diet in such a way as to consume other or additional nutrients which are absorbed by the body by way of digestion?

| 1(c) | For the purposes of categorisation as a food for special medical purposes, is it also necessary that the condition or disease for which the product is intended requires dietary management in order to ensure that the patient ingests the nutrients contained in the product which cannot be absorbed through the normal diet? |
| --- | --- |

1(c)

For the purposes of categorisation as a food for special medical purposes, is it also necessary that the condition or disease for which the product is intended requires dietary management in order to ensure that the patient ingests the nutrients contained in the product which cannot be absorbed through the normal diet?

| 1(d) | Must the food for special medical purposes achieve its medical effect solely by virtue of the fact that it contains some or all of those nutrients which cannot be absorbed through the normal diet but are absolutely necessary or required in order for the patient to maintain his or her vital functions? |
| --- | --- |

1(d)

Must the food for special medical purposes achieve its medical effect solely by virtue of the fact that it contains some or all of those nutrients which cannot be absorbed through the normal diet but are absolutely necessary or required in order for the patient to maintain his or her vital functions?

If those questions are answered in the negative: What type of ingredients must a product contain in order to meet the requirements for a food for special medical purposes?

| 2(a) | Does the categorisation of a product as a food supplement preclude the possibility of that product also being categorised as a food for special medical purposes? |
| --- | --- |

2(a)

Does the categorisation of a product as a food supplement preclude the possibility of that product also being categorised as a food for special medical purposes?

| 2(b) | If that question is answered in the negative: What criteria should be used to determine that a particular food supplement cannot be categorised as a food for special medical purposes? |
| --- | --- |

2(b)

If that question is answered in the negative: What criteria should be used to determine that a particular food supplement cannot be categorised as a food for special medical purposes?

| 2(c) | Can the use of ‘food supplements’ within the meaning of Directive 2002/46/EC on the approximation of the laws of the Member States relating to food supplements constitute, in itself, ‘dietary management’ within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013? |
| --- | --- |

2(c)

Can the use of ‘food supplements’ within the meaning of Directive 2002/46/EC on the approximation of the laws of the Member States relating to food supplements constitute, in itself, ‘dietary management’ within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013?

| 2(d) | Does a food already become a food for special medical purposes if it contains nutrients which can also be ingested by way of food supplements or other foods, but which are formulated specifically for a particular disease or condition? |
| --- | --- |

2(d)

Does a food already become a food for special medical purposes if it contains nutrients which can also be ingested by way of food supplements or other foods, but which are formulated specifically for a particular disease or condition?

| 3. | What criteria should be used as a basis for distinguishing a medicinal product from a food for special medical purposes or, alternatively, is it possible to draw a distinction between them? |
| --- | --- |

3.

What criteria should be used as a basis for distinguishing a medicinal product from a food for special medical purposes or, alternatively, is it possible to draw a distinction between them?

| 4. | Is the requirement in Article 2(2)(g) of Regulation (EU) No 609/2013, according to which the ingredients relevant to categorisation as food for special medical purposes must produce their effect in the context of dietary management which cannot be achieved by modification of the normal diet, to be interpreted as meaning that a patient in respect of whose disease or condition the food for special medical purposes is placed on the market is not able to meet his or her nutritional requirements adequately via the intake of generally available foods? |
| --- | --- |

4.

Is the requirement in Article 2(2)(g) of Regulation (EU) No 609/2013, according to which the ingredients relevant to categorisation as food for special medical purposes must produce their effect in the context of dietary management which cannot be achieved by modification of the normal diet, to be interpreted as meaning that a patient in respect of whose disease or condition the food for special medical purposes is placed on the market is not able to meet his or her nutritional requirements adequately via the intake of generally available foods?

| 5(a) | Is the phrase ‘whose dietary management cannot be achieved by modification of the normal diet alone’ in Article 2(2)(g) of Regulation (EU) No 609/2013 relative in nature in so far as fulfilment of that requirement is also to be assumed in the case where the nutrient intake required in the context of the disease or condition in question can be achieved by means of generally available foods (in particular, food supplements) only in a particularly burdensome manner? |
| --- | --- |

5(a)

Is the phrase ‘whose dietary management cannot be achieved by modification of the normal diet alone’ in Article 2(2)(g) of Regulation (EU) No 609/2013 relative in nature in so far as fulfilment of that requirement is also to be assumed in the case where the nutrient intake required in the context of the disease or condition in question can be achieved by means of generally available foods (in particular, food supplements) only in a particularly burdensome manner?

| 5(b) | If that question is answered in the affirmative, what criteria should be used to determine that the burden associated with the intake of generally available foods meets the requirement ‘whose dietary management cannot be achieved by modification of the normal diet alone’ in Article 2(2)(g) of Regulation (EU) No 609/2013? In particular, is it to be assumed that that requirement is met in the case where a patient would be required to take several generally available food supplements separately? |
| --- | --- |

5(b)

If that question is answered in the affirmative, what criteria should be used to determine that the burden associated with the intake of generally available foods meets the requirement ‘whose dietary management cannot be achieved by modification of the normal diet alone’ in Article 2(2)(g) of Regulation (EU) No 609/2013? In particular, is it to be assumed that that requirement is met in the case where a patient would be required to take several generally available food supplements separately?

| 6(a) | What is to be understood by a ‘nutrient’ within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013? |
| --- | --- |

6(a)

What is to be understood by a ‘nutrient’ within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013?

| 6(b) | What criteria should be used to determine whether a certain ingredient of a product is to be categorised as a nutrient within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013? |
| --- | --- |

6(b)

What criteria should be used to determine whether a certain ingredient of a product is to be categorised as a nutrient within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013?

| 7(a) | Is the requirement ‘to be used under medical supervision’ in Article 2(2)(g) of Regulation (EU) No 609/2013 already met in the case where that product is supplied in a pharmacy without the need to obtain beforehand a doctor’s prescription? |
| --- | --- |

7(a)

Is the requirement ‘to be used under medical supervision’ in Article 2(2)(g) of Regulation (EU) No 609/2013 already met in the case where that product is supplied in a pharmacy without the need to obtain beforehand a doctor’s prescription?

| 7(b) | What criteria should be used to determine whether the requirement of use under medical supervision within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013 is met with regard to a certain product? |
| --- | --- |

7(b)

What criteria should be used to determine whether the requirement of use under medical supervision within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013 is met with regard to a certain product?

| 7(c) | What is the consequence of the eventuality that that requirement of use under medical supervision within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013 is not met in a specific case, or even in general? |
| --- | --- |

7(c)

What is the consequence of the eventuality that that requirement of use under medical supervision within the meaning of Article 2(2)(g) of Regulation (EU) No 609/2013 is not met in a specific case, or even in general?

| 8(a) | Is the existence of a food for special medical purposes to be assumed only in the case where it is NOT possible to use that food without medical supervision? |
| --- | --- |

8(a)

Is the existence of a food for special medical purposes to be assumed only in the case where it is NOT possible to use that food without medical supervision?

| 8(b) | If that question is answered in the affirmative, what criteria should be used in order to determine whether a food can also be used without medical supervision? |
| --- | --- |

8(b)

If that question is answered in the affirmative, what criteria should be used in order to determine whether a food can also be used without medical supervision?

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(1)  Regulation (EU) No 609/2013 of the European Parliament and of the Council of 12 June 2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC, 1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the European Parliament and of the Council and Commission Regulations (EC) No 41/2009 and (EC) No 953/2009 (OJ 2013 L 181, p. 35).

(2)  Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/8 |
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28.3.2022

EN

Official Journal of the European Union

C 138/8

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Request for a preliminary ruling from the Tribunale ordinario di Padova (Italy) lodged on 13 December 2021 — D.M. v Azienda Ospedale-Università di Padova

(Case C-765/21)

(2022/C 138/08)

Language of the case: Italian

Referring court

Tribunale ordinario di Padova

Parties to the main proceedings

Applicant: D.M.

Defendant: Azienda Ospedale-Università di Padova

Questions referred

| 1. | Can the conditional authorisations of the Commission, issued following a favourable opinion of the EMA, for vaccines currently on the market be considered still valid for the purposes of Article 4 of Regulation No 507/2006, (1) in the light of the fact that in several Member States (for example in Italy, AIFA (Agenzia italiana del farmaco; Italian Medicines Agency) approval of the method of treatment with monoclonal and/or antiviral antibodies) effective alternative COVID SARS 2 treatments have been approved, which, the applicant argues, are less hazardous for human health, and also in the light of Articles 3 and 35 of the Nice Charter? |
| --- | --- |

1.

Can the conditional authorisations of the Commission, issued following a favourable opinion of the EMA, for vaccines currently on the market be considered still valid for the purposes of Article 4 of Regulation No 507/2006, (1) in the light of the fact that in several Member States (for example in Italy, AIFA (Agenzia italiana del farmaco; Italian Medicines Agency) approval of the method of treatment with monoclonal and/or antiviral antibodies) effective alternative COVID SARS 2 treatments have been approved, which, the applicant argues, are less hazardous for human health, and also in the light of Articles 3 and 35 of the Nice Charter?

| 2. | In the case of healthcare workers on whom the law of the Member State in question has imposed compulsory vaccination, can vaccines approved by the Commission conditionally within the meaning of Regulation No 507/2006 be used for the purposes of compulsory vaccination even if the healthcare workers in question have already been infected and thus have already acquired natural immunity and can therefore apply for a derogation from the obligation? |
| --- | --- |

2.

In the case of healthcare workers on whom the law of the Member State in question has imposed compulsory vaccination, can vaccines approved by the Commission conditionally within the meaning of Regulation No 507/2006 be used for the purposes of compulsory vaccination even if the healthcare workers in question have already been infected and thus have already acquired natural immunity and can therefore apply for a derogation from the obligation?

| 3. | In the case of healthcare workers on whom the law of the Member State in question has imposed compulsory vaccination, can vaccines approved by the Commission conditionally within the meaning of Regulation No 507/2006 be used for the purposes of compulsory vaccination, without any procedure for precautionary purposes, or may those healthcare workers oppose inoculation, in view of the conditionality of the authorisation, at least until the deciding health authority has ruled out, in the circumstances concerned and with reasonable certainty, that, on the one hand, there are no contraindications to that effect and, on the other, that the benefits to be gained from them outweigh those gained from other medicinal products currently available? In that case, must the deciding health authority act in accordance with Article 41 of the Nice Charter? |
| --- | --- |

3.

In the case of healthcare workers on whom the law of the Member State in question has imposed compulsory vaccination, can vaccines approved by the Commission conditionally within the meaning of Regulation No 507/2006 be used for the purposes of compulsory vaccination, without any procedure for precautionary purposes, or may those healthcare workers oppose inoculation, in view of the conditionality of the authorisation, at least until the deciding health authority has ruled out, in the circumstances concerned and with reasonable certainty, that, on the one hand, there are no contraindications to that effect and, on the other, that the benefits to be gained from them outweigh those gained from other medicinal products currently available? In that case, must the deciding health authority act in accordance with Article 41 of the Nice Charter?

| 4. | In the case of a vaccine authorised conditionally by the Commission, can a failure by healthcare personnel to comply with the obligation under the law of the State to be vaccinated automatically entail suspension from work without pay or must provision be made for a graduated scale of penalties in accordance with the fundamental principle of proportionality? |
| --- | --- |

4.

In the case of a vaccine authorised conditionally by the Commission, can a failure by healthcare personnel to comply with the obligation under the law of the State to be vaccinated automatically entail suspension from work without pay or must provision be made for a graduated scale of penalties in accordance with the fundamental principle of proportionality?

| 5. | Where national law permits forms of dépeçage [attribution of different tasks to a worker], must the possibility of alternative deployment of the worker concerned be examined in accordance with the principle of audi alteram partem laid down in Article 41 of the Nice Charter, with a consequent right to compensation in the event of failure to do so? |
| --- | --- |

5.

Where national law permits forms of dépeçage [attribution of different tasks to a worker], must the possibility of alternative deployment of the worker concerned be examined in accordance with the principle of audi alteram partem laid down in Article 41 of the Nice Charter, with a consequent right to compensation in the event of failure to do so?

| 6. | Is national legislation, such as that laid down in Article 4(11) of Decree-Law No 44/2021, which allows healthcare personnel who have been declared exempt from the obligation to be vaccinated to carry on their activities in contact with patients, albeit in compliance with the safety measures imposed by the legislation in force, whereas a healthcare worker who, like the applicant — being naturally immune following infection — does not wish to be vaccinated without thorough medical examinations, is automatically suspended from all professional activity and without pay, lawful in the light of Regulation 2021/953, (2) which prohibits any discrimination between those who have taken the vaccine and those who have been unwilling or unable to take it for medical reasons? |
| --- | --- |

6.

Is national legislation, such as that laid down in Article 4(11) of Decree-Law No 44/2021, which allows healthcare personnel who have been declared exempt from the obligation to be vaccinated to carry on their activities in contact with patients, albeit in compliance with the safety measures imposed by the legislation in force, whereas a healthcare worker who, like the applicant — being naturally immune following infection — does not wish to be vaccinated without thorough medical examinations, is automatically suspended from all professional activity and without pay, lawful in the light of Regulation 2021/953, (2) which prohibits any discrimination between those who have taken the vaccine and those who have been unwilling or unable to take it for medical reasons?

| 7. | Is legislation of a Member State which provides for a compulsory Covid vaccine — conditionally authorised by the Commission — for all healthcare personnel, even if they come from another Member State and are in Italy for the purposes of exercising the freedom to provide services and freedom of establishment, compatible with Regulation 2021/953 and with the principles of proportionality and non-discrimination contained therein? |
| --- | --- |

7.

Is legislation of a Member State which provides for a compulsory Covid vaccine — conditionally authorised by the Commission — for all healthcare personnel, even if they come from another Member State and are in Italy for the purposes of exercising the freedom to provide services and freedom of establishment, compatible with Regulation 2021/953 and with the principles of proportionality and non-discrimination contained therein?

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(1)  Commission Regulation (EC) No 507/2006 of 29 March 2006 on the conditional marketing authorisation for medicinal products for human use falling within the scope of Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ 2006 L 92, p. 6).

(2)  Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic (OJ 2021 L 211, p. 1).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/9 |
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28.3.2022

EN

Official Journal of the European Union

C 138/9

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Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 14 December 2021 — TR v Land Hessen

(Case C-768/21)

(2022/C 138/09)

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: TR

Defendant: Land Hessen

Question referred

Are Article 57(1)(a) and (f) and Article 58(2)(a) to (j) of Regulation (EU) 2016/679, (1) read in combination with Article 77(1) thereof, to be understood as meaning that, where the supervisory authority finds that data processing has infringed the data subject’s rights, the supervisory authority must always take action in accordance with Article 58(2) of that regulation?

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(1)  Regulation of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/10 |
| --- | --- | --- | --- |

28.3.2022

EN

Official Journal of the European Union

C 138/10

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Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 13 December 2021 — OGL-Food Trade Lebensmittelvertrieb GmbH v Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’

(Case C-770/21)

(2022/C 138/10)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: OGL-Food Trade Lebensmittelvertrieb GmbH

Defendant: Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’

Questions referred

| 1. | In the light of Article 70(1) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of Commission Delegated Regulation (EU) 2017/891 (2) supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the Customs Code — ‘the buyer and seller are not related’ — for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:






  — | information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union — regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment; |
| --- | --- | --- |

1.

In the light of Article 70(1) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of Commission Delegated Regulation (EU) 2017/891 (2) supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the Customs Code — ‘the buyer and seller are not related’ — for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:

—

information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union — regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment;

| — | information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books, or the right of deduction exercised in respect of the specific import; |
| --- | --- |

—

information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books, or the right of deduction exercised in respect of the specific import;

| — | the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union; |
| --- | --- |

—

the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union;

| — | the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties? |
| --- | --- |

—

the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties?

If those circumstances are relevant, do they permit the importing trader and the exporting trader, or the importer and the buyer at the first level of trade in the EU, to be categorised as ‘legally recognised partners in business’ or as related persons within the meaning of Article 127(1)(b) and Article 142(4)(b) of Commission Implementing Regulation (EU) 2015/2447 (3) of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code?

If the above circumstances are relevant but are not sufficient to regard the traders as related persons, is there an obligation to assess, for the purposes of the verification under Article 75(6) of Delegated Regulation (EU) 2017/891, whether the relationship between the traders influenced the determination of the higher price of the product subject to the specific importation, in order to counteract the evasion of customs duties and the loss of tax revenue to the EU budget, taking into account also the subsequent sale at a loss at the first level of trade in the EU?

| 2. | Does it follow from Article 47(1) and Article 41(2)(c) of the Charter of Fundamental Rights — interpreted in conjunction with the importer’s right of appeal under Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of the UCC, in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion — that:






  — | the condition laid down in Article 70(3)(d) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code — ‘the buyer and seller are not related or the relationship did not influence the price’ — may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision? |
| --- | --- | --- |

2.

Does it follow from Article 47(1) and Article 41(2)(c) of the Charter of Fundamental Rights — interpreted in conjunction with the importer’s right of appeal under Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of the UCC, in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion — that:

—

the condition laid down in Article 70(3)(d) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code — ‘the buyer and seller are not related or the relationship did not influence the price’ — may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision?

| — | where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council establishing the Union Customs Code, it would be contrary to Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value? |
| --- | --- |

—

where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council establishing the Union Customs Code, it would be contrary to Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value?

| 3. | In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, BV, С-160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, according to which ‘the importer shall make available ... all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question’, that:






  — | the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods — vegetables — were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated — also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value — in order, inter alia, to counteract evasion of customs duty and loss of tax revenue? |
| --- | --- | --- |

3.

In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, BV, С-160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, according to which ‘the importer shall make available ... all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question’, that:

—

the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods — vegetables — were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated — also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value — in order, inter alia, to counteract evasion of customs duty and loss of tax revenue?

| — | the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? Or |
| --- | --- |

—

the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? Or

| — | the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891 as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty? |
| --- | --- |

—

the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891 as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty?

| 4. | In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary, С-291/15, EU:C:2016:455, that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:






  — | the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector; |
| --- | --- | --- |

4.

In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary, С-291/15, EU:C:2016:455, that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:

—

the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector;

| — | the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid; |
| --- | --- |

—

the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid;

| — | the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables? |
| --- | --- |

—

the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables?

---

(1)  OJ 2013 L 269, p. 1.

(2)  Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011 (OJ 2017 L 138, p. 4).

(3)  OJ 2015 L 343, p. 558.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/12 |
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Appeal brought on 9 December 2021 by AV, AW against the judgment of the General Court (Eighth Chamber) delivered on 6 October 2021 in Case T-43/20, AV and AW v Parliament

(Case C-773/21 P)

(2022/C 138/11)

Language of the case: French

Parties

Appellants: AV, AW (represented by: J. Martins, avocat)

Other party to the proceedings: European Parliament

Form of order sought

The appellants claim that the Court should:

| — | declare the appeal admissible and well founded; |
| --- | --- |

—

declare the appeal admissible and well founded;

| — | set aside the judgment under appeal; |
| --- | --- |

—

set aside the judgment under appeal;

| — | dispose of the case itself by upholding the claims of the appellants put forward at first instance, including the claim that the defendant be ordered to pay the costs; or in the alternative |
| --- | --- |

—

dispose of the case itself by upholding the claims of the appellants put forward at first instance, including the claim that the defendant be ordered to pay the costs; or in the alternative

| — | refer the case back to the General Court for judgment; |
| --- | --- |

—

refer the case back to the General Court for judgment;

| — | order the European Parliament to pay all the costs at first instance and on appeal. |
| --- | --- |

—

order the European Parliament to pay all the costs at first instance and on appeal.

Pleas in law and main arguments

| — | Infringement of the rights of the defence and failure to comply with the duty to state reasons; |
| --- | --- |

—

Infringement of the rights of the defence and failure to comply with the duty to state reasons;

| — | Inaccurate assessments of the facts and distortion of a number of items of evidence which led the General Court to err in law in the assessment of the facts; |
| --- | --- |

—

Inaccurate assessments of the facts and distortion of a number of items of evidence which led the General Court to err in law in the assessment of the facts;

| — | Error of law in the interpretation of the applicable legislation. |
| --- | --- |

—

Error of law in the interpretation of the applicable legislation.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/13 |
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C 138/13

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Request for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 15 December 2021 — EV v Alltours Flugreisen GmbH

(Case C-776/21)

(2022/C 138/12)

Language of the case: Germany

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: EV

Defendant: Alltours Flugreisen GmbH

Questions referred

| 1. | Is it sufficient, in determining whether unavoidable and extraordinary circumstances occur at the place of destination of the trip or holiday within the meaning of the first sentence of Article 12(2) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (‘the Package Travel Directive’), (1) if the destination area of the trip or holiday is classified as a risk area by the specialist authority established at national level for the protection against communicable diseases, while the conditions for classification as a risk area are not satisfied at the place of origin? |
| --- | --- |

1.

Is it sufficient, in determining whether unavoidable and extraordinary circumstances occur at the place of destination of the trip or holiday within the meaning of the first sentence of Article 12(2) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (‘the Package Travel Directive’), (1) if the destination area of the trip or holiday is classified as a risk area by the specialist authority established at national level for the protection against communicable diseases, while the conditions for classification as a risk area are not satisfied at the place of origin?

| 2. | Must the traveller be able to predict, at the time of the termination of the package within the meaning of the first sentence of Article 12(2) of the Package Travel Directive, whether there will be significant disruptions at the place of destination or its immediate vicinity on the date of departure or at the time of travel? |
| --- | --- |

2.

Must the traveller be able to predict, at the time of the termination of the package within the meaning of the first sentence of Article 12(2) of the Package Travel Directive, whether there will be significant disruptions at the place of destination or its immediate vicinity on the date of departure or at the time of travel?

| 3. | Must the termination take place close in time to the start of the trip or holiday or may it be declared at any time between the time of booking the trip or holiday and the start of the trip or holiday if it could not be excluded, at the time of termination, that the extraordinary circumstance might occur? |
| --- | --- |

3.

Must the termination take place close in time to the start of the trip or holiday or may it be declared at any time between the time of booking the trip or holiday and the start of the trip or holiday if it could not be excluded, at the time of termination, that the extraordinary circumstance might occur?

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(1)  OJ 2015 L 326, p. 1.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/13 |
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C 138/13

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Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 15 December 2021 — Y.YA. v K.P.

(Case C-797/21)

(2022/C 138/13)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: Y.YA.

Defendant: K.P.

Questions referred

| 1. | Must the second subparagraph of Article 19(1) TEU be interpreted as meaning that, due to the fact that the independence of the courts has been undermined, citizens are not guaranteed the legal remedies necessary for effective judicial protection where, in a Member State of the European Union, it is permissible for judges to be seconded to a higher court for an indefinite period, with their consent, by decision of a governing body of the judiciary which is independent of the other public authorities, if conditions are laid down for a decision to terminate the secondment and provision is made for a legal remedy against that decision, but that remedy does not have suspensive effect while the proceedings are pending, and on the basis of what criteria should it be specifically assessed whether secondment for an indefinite period is permissible? |
| --- | --- |

1.

Must the second subparagraph of Article 19(1) TEU be interpreted as meaning that, due to the fact that the independence of the courts has been undermined, citizens are not guaranteed the legal remedies necessary for effective judicial protection where, in a Member State of the European Union, it is permissible for judges to be seconded to a higher court for an indefinite period, with their consent, by decision of a governing body of the judiciary which is independent of the other public authorities, if conditions are laid down for a decision to terminate the secondment and provision is made for a legal remedy against that decision, but that remedy does not have suspensive effect while the proceedings are pending, and on the basis of what criteria should it be specifically assessed whether secondment for an indefinite period is permissible?

| 2. | Would the answer to the first question be different if the objective conditions for the decision to order the termination of a secondment are laid down by law and are subject to judicial review, but no such conditions subject to judicial review are laid down in respect of the selection of judges to be seconded? |
| --- | --- |

2.

Would the answer to the first question be different if the objective conditions for the decision to order the termination of a secondment are laid down by law and are subject to judicial review, but no such conditions subject to judicial review are laid down in respect of the selection of judges to be seconded?

| 3. | If the answer to the first question is that the secondment of judges is permissible under such conditions if objective rules are complied with, must account be taken, when assessing the extent to which the national provisions run counter to the requirement to provide sufficient remedies under the second subparagraph of Article 19(1) TEU, of not only the criteria laid down by law but also the manner in which they are applied by the competent administrative and judicial authorities? |
| --- | --- |

3.

If the answer to the first question is that the secondment of judges is permissible under such conditions if objective rules are complied with, must account be taken, when assessing the extent to which the national provisions run counter to the requirement to provide sufficient remedies under the second subparagraph of Article 19(1) TEU, of not only the criteria laid down by law but also the manner in which they are applied by the competent administrative and judicial authorities?

| 4. | Must Commission Decision 2006/929/EC be interpreted as meaning that the answers to the previous three questions would be different if a national practice of secondment which is based on rules similar to those currently in force has been established, and this has given rise to objections under the mechanism for cooperation and verification established by that decision? |
| --- | --- |

4.

Must Commission Decision 2006/929/EC be interpreted as meaning that the answers to the previous three questions would be different if a national practice of secondment which is based on rules similar to those currently in force has been established, and this has given rise to objections under the mechanism for cooperation and verification established by that decision?

| 5. | If it has been established that the national provisions on the secondment of judges may run counter to the obligation to provide remedies that are necessary to guarantee effective judicial protection under the second subparagraph of Article 19(1) TEU, must that article be interpreted as precluding a higher court, the adjudicating panel of which was also composed of a seconded judge, from giving binding directions to a national court, and under what conditions is that the case? In particular, are directions which do not concern the merits of the dispute but prescribe that certain procedural acts are to be performed vitiated by a procedural defect? |
| --- | --- |

5.

If it has been established that the national provisions on the secondment of judges may run counter to the obligation to provide remedies that are necessary to guarantee effective judicial protection under the second subparagraph of Article 19(1) TEU, must that article be interpreted as precluding a higher court, the adjudicating panel of which was also composed of a seconded judge, from giving binding directions to a national court, and under what conditions is that the case? In particular, are directions which do not concern the merits of the dispute but prescribe that certain procedural acts are to be performed vitiated by a procedural defect?

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/14 |
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28.3.2022

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Official Journal of the European Union

C 138/14

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Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 20 December 2021 — Criminal proceedings against ZhU and RD

(Case C-805/21)

(2022/C 138/14)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Parties to the main proceedings

ZhU and RD

Question referred

Is it compatible with Article 2(3) of Directive 2014/42 (1) or, in the alternative, with the third indent of Article 1 of Framework Decision 2005/212 to interpret national law as meaning that a motor vehicle used to store large quantities of excise goods (cigarettes) without strip stamps does not constitute an instrumentality of crime?

---

(1)  Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/14 |
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28.3.2022

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Official Journal of the European Union

C 138/14

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Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 December 2021 — Criminal proceedings against TF

(Case C-806/21)

(2022/C 138/15)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Party to the main proceedings

TF

Questions referred

| 1. | Are natural and legal persons who are involved in the placing on the market of scheduled substances in such a way that that involvement constitutes an offence punishable under Article 2(1)(d) of Framework Decision 2004/757 (1) to be regarded as ‘operators’ for the purposes of Article 2(d) of Regulation No 273/2004? (2)

  If the answer to this first question is in the affirmative: |
| --- | --- |

1.

Are natural and legal persons who are involved in the placing on the market of scheduled substances in such a way that that involvement constitutes an offence punishable under Article 2(1)(d) of Framework Decision 2004/757 (1) to be regarded as ‘operators’ for the purposes of Article 2(d) of Regulation No 273/2004? (2)

If the answer to this first question is in the affirmative:

| 2. | (a) | Does the conduct of the operator referred to in Question 1 constitute a ‘circumstance’ for the purposes of Article 8(1) of Regulation No 273/2004? |
| --- | --- | --- |

2.

(a)

Does the conduct of the operator referred to in Question 1 constitute a ‘circumstance’ for the purposes of Article 8(1) of Regulation No 273/2004?

| (b) | Does conduct such as the receipt, transport and storage of scheduled substances constitute a ‘circumstance’ for the purposes of Article 8(1) of Regulation No 273/2004 if that conduct does not take place with the intention of supplying those substances to a third party? |
| --- | --- |

(b)

Does conduct such as the receipt, transport and storage of scheduled substances constitute a ‘circumstance’ for the purposes of Article 8(1) of Regulation No 273/2004 if that conduct does not take place with the intention of supplying those substances to a third party?

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(1)  Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8).

(2)  Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors (OJ 2004 L 47, p. 1).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/15 |
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28.3.2022

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Official Journal of the European Union

C 138/15

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Request for a preliminary ruling from the Rechtbank Noord-Holland zittingsplaats Haarlem (Netherlands) lodged on 21 December 2021 — Nokia Solutions and Networks Oy v Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven

(Case C-809/21)

(2022/C 138/16)

Language of the case: Dutch

Referring court

Rechtbank Noord-Holland zittingsplaats Haarlem

Parties to the main proceedings

Appellant: Nokia Solutions and Networks Oy

Respondent: Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven

Question referred

Is there an infringement of EU law — which is a condition for entitlement to interest under EU law as developed by the Court of Justice — where a Member State authority, on the basis of a post-importation control of a customs declaration submitted after 1 May 2016, imposes a duty in breach of legally valid provisions of EU law and a Member State court makes a finding of that infringement of EU law?

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/15 |
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28.3.2022

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Official Journal of the European Union

C 138/15

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Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 28 December 2021 — Vinal AD v Direktor na Agentsia ‘Mitnitsi’

(Case C-820/21)

(2022/C 138/17)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Vinal AD

Defendant: Direktor na Agentsia ‘Mitnitsi’

Questions referred

How is Article 16(1) of Directive 2008/118/ЕC (1) to be interpreted in so far as it provides that authorisation to open and operate a tax warehouse is subject to conditions that the authorities are entitled to lay down for the purpose of preventing any possible evasion or abuse; what content must those conditions have in order to achieve the objectives of preventing evasion or abuse?

How is the principle of non-discrimination for the purposes of recital 10 of Directive 2008/118/ЕC to be interpreted?

How are those provisions to be interpreted, and are they to be interpreted as precluding national legislation, such as that in Article 53(1)(3) of the ZADS, in conjunction with Article 47(1)(5) thereof, in so far as the latter provisions provide for the unconditional withdrawal of authorisation for the future, which takes place indefinitely and without any restriction as to time, in addition to a penalty already imposed for the same act?

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(1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/16 |
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28.3.2022

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Official Journal of the European Union

C 138/16

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Request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 24 December 2021 — TE, RU, represented for legal purposes by TE v Stadt Frankfurt am Main

(Case C-829/21)

(2022/C 138/18)

Language of the case: German

Referring court

Hessischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: TE, RU, represented for legal purposes by TE

Defendant: Stadt Frankfurt am Main

Questions referred

| 1. | Is Paragraph 38a(1) of the Aufenthaltsgesetz (Law on residence; ‘the AufenthG’), which, under national law, must be interpreted as meaning that an onward-migrating long-term resident must also have long-term resident status in the first Member State at the time of renewal of his or her residence permit, consistent with the provisions of Article 14 et seq. of Directive 2003/109/EC, (1) which merely provide that a long-term resident has the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the other conditions set out in Chapter III of the directive are met? |
| --- | --- |

1.

Is Paragraph 38a(1) of the Aufenthaltsgesetz (Law on residence; ‘the AufenthG’), which, under national law, must be interpreted as meaning that an onward-migrating long-term resident must also have long-term resident status in the first Member State at the time of renewal of his or her residence permit, consistent with the provisions of Article 14 et seq. of Directive 2003/109/EC, (1) which merely provide that a long-term resident has the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the other conditions set out in Chapter III of the directive are met?

| 2. | When deciding on an application for renewal under Paragraph 38a(1) of the AufenthG, is the Ausländerbehörde (authority responsible for foreign nationals) entitled under the provisions of Article 14 et seq. of Directive 2003/109/EC, where the other requirements for a temporary renewal are met and the foreign national has, in particular, stable and regular resources, to establish — in such a way as to deprive that foreign national of his or her rights — that he or she has in the meantime, that is to say, after moving to the second Member State, lost his or her status in the first Member State in accordance with the second subparagraph of Article 9(4) of Directive 2003/109/EC? Is the relevant point in time for that decision the date of the most recent decision of an authority or court? |
| --- | --- |

2.

When deciding on an application for renewal under Paragraph 38a(1) of the AufenthG, is the Ausländerbehörde (authority responsible for foreign nationals) entitled under the provisions of Article 14 et seq. of Directive 2003/109/EC, where the other requirements for a temporary renewal are met and the foreign national has, in particular, stable and regular resources, to establish — in such a way as to deprive that foreign national of his or her rights — that he or she has in the meantime, that is to say, after moving to the second Member State, lost his or her status in the first Member State in accordance with the second subparagraph of Article 9(4) of Directive 2003/109/EC? Is the relevant point in time for that decision the date of the most recent decision of an authority or court?

| 3. | If Questions 1 and 2 are answered in the negative:
  Does the long-term resident bear the burden of proving that his or her right of residence as a long-term resident in the first Member State has not expired?
  If that question is answered in the negative, is a national court or authority entitled to review whether the residence permit granted to the long-term resident for an unlimited period is no longer valid, or would this be contrary to the principle of mutual recognition of administrative decisions under EU law? |
| --- | --- |

3.

If Questions 1 and 2 are answered in the negative:

Does the long-term resident bear the burden of proving that his or her right of residence as a long-term resident in the first Member State has not expired?

If that question is answered in the negative, is a national court or authority entitled to review whether the residence permit granted to the long-term resident for an unlimited period is no longer valid, or would this be contrary to the principle of mutual recognition of administrative decisions under EU law?

| 4. | Can a lack of evidence of appropriate accommodation be held against a third-country national who has entered Germany from Italy on the basis of a long-term resident’s residence permit granted for an unlimited period and who has stable and regular resources, even though Germany has not made use of the authorisation in the second subparagraph of Article 15(4) of Directive 2003/109/EC, and it was necessary to place that third-country national in social housing only because no child benefit will be paid to her as long as she does not hold a residence permit under Paragraph 38a of the AufenthG? |
| --- | --- |

4.

Can a lack of evidence of appropriate accommodation be held against a third-country national who has entered Germany from Italy on the basis of a long-term resident’s residence permit granted for an unlimited period and who has stable and regular resources, even though Germany has not made use of the authorisation in the second subparagraph of Article 15(4) of Directive 2003/109/EC, and it was necessary to place that third-country national in social housing only because no child benefit will be paid to her as long as she does not hold a residence permit under Paragraph 38a of the AufenthG?

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(1)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/17 |
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Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 31 December 2021 — Endesa Generación, S.A.U. v Tribunal Económico Administrativo Central

(Case C-833/21)

(2022/C 138/19)

Language of the case: Spanish

Referring court

Audiencia Nacional

Parties to the main proceedings

Applicant: Endesa Generación, S.A.U.

Defendant: Tribunal Económico Administrativo Central

Questions referred

| 1. | Is the Spanish legislation which provides for a tax on coal used for electricity generation compatible with Article 14(1)(a) of Directive 2003/96/EC, (1) when, despite stating that its aim is to protect the environment, that aim is not reflected in the structure of the tax and the tax levied is used to finance the costs of the electricity system? |
| --- | --- |

1.

Is the Spanish legislation which provides for a tax on coal used for electricity generation compatible with Article 14(1)(a) of Directive 2003/96/EC, (1) when, despite stating that its aim is to protect the environment, that aim is not reflected in the structure of the tax and the tax levied is used to finance the costs of the electricity system?

| 2. | Is it possible to consider that the environmental aim is given concrete expression in the structure of the tax on the ground that the tax rates are set in relation to the calorific value of coal used for electricity generation? |
| --- | --- |

2.

Is it possible to consider that the environmental aim is given concrete expression in the structure of the tax on the ground that the tax rates are set in relation to the calorific value of coal used for electricity generation?

| 3. | Is the environmental aim achieved simply by reason of the fact that taxes have been imposed on certain non-renewable energy products and that no tax is levied on the use of such products where they are considered to be less harmful to the environment? |
| --- | --- |

3.

Is the environmental aim achieved simply by reason of the fact that taxes have been imposed on certain non-renewable energy products and that no tax is levied on the use of such products where they are considered to be less harmful to the environment?

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(1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/17 |
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Official Journal of the European Union

C 138/17

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Request for a preliminary ruling from the Oberlandesgericht Graz (Austria) lodged on 6 January 2022 — Staatsanwaltschaft Graz v MS

(Case C-16/22)

(2022/C 138/20)

Language of the case: German

Referring court

Oberlandesgericht Graz

Parties to the main proceedings

Applicant: Staatsanwaltschaft Graz

Defendant: MS

Other party: Finanzamt für Steuerstrafsachen und Steuerfahndung Düsseldorf

Question referred

Must the first sentence of Article 1(1) and Article 2(c)(i) of Directive 2014/41/EU (1) of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters be interpreted as meaning that a German tax office for criminal tax matters and tax investigation which is empowered under national rules to exercise the rights and fulfil the obligations of the public prosecutor’s office in relation to certain offences is to be regarded as a ‘judicial authority’ and an ‘issuing authority’ within the meaning of those provisions of EU law?

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(1)  Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/18 |
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Official Journal of the European Union

C 138/18

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Request for a preliminary ruling from the Administrativen sad Veliko Tarnovo (Bulgaria) lodged on 12 January 2022 — DV v Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut — Veliko Tarnovo

(Case C-30/22)

(2022/C 138/21)

Language of the case: Bulgarian

Referring court

Administrativen sad Veliko Tarnovo

Parties to the main proceedings

Applicant in the main proceedings: DV

Defendant in the main proceedings: Direktor na Teritorialno podelenie na Natsionalnia osiguritelen institut — Veliko Tarnovo

Questions referred

| 1. | Must the provision of Article 30(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, read in conjunction with Article 30(1)(a) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by the scope ratione personae of Article 31(1) of the Agreement if they were nationals of a Member State without interruption throughout the transitional period and were at the same time subject to the legislation of the United Kingdom, or must it be interpreted as meaning that the persons referred to in Article 30(1)(a) of the Agreement are covered by Article 31(1) only for as long as they are employed in the United Kingdom at and/or after the end of the transitional period? |
| --- | --- |

1.

Must the provision of Article 30(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, read in conjunction with Article 30(1)(a) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by the scope ratione personae of Article 31(1) of the Agreement if they were nationals of a Member State without interruption throughout the transitional period and were at the same time subject to the legislation of the United Kingdom, or must it be interpreted as meaning that the persons referred to in Article 30(1)(a) of the Agreement are covered by Article 31(1) only for as long as they are employed in the United Kingdom at and/or after the end of the transitional period?

| 2. | Must the provision of Article 30(2) of the Agreement, read in conjunction with Article 30(1)(c) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by Article 31(1) of the Agreement if they resided as Union citizens in the United Kingdom without interruption throughout the transitional period and were at the same time subject to the legislation of a single Member State throughout the transitional period, until the end of that period, or must it be interpreted as meaning that the persons referred to in Article 30(1)(c) are not covered by Article 31(1) if they ceased to reside in the United Kingdom after the end of the transitional period? |
| --- | --- |

2.

Must the provision of Article 30(2) of the Agreement, read in conjunction with Article 30(1)(c) thereof, be interpreted as meaning that the persons referred to in the second provision are covered by Article 31(1) of the Agreement if they resided as Union citizens in the United Kingdom without interruption throughout the transitional period and were at the same time subject to the legislation of a single Member State throughout the transitional period, until the end of that period, or must it be interpreted as meaning that the persons referred to in Article 30(1)(c) are not covered by Article 31(1) if they ceased to reside in the United Kingdom after the end of the transitional period?

| 3. | If it follows from the interpretation of the provisions of Article 30(2) of the Agreement, read in conjunction with Article 30(1)(a) and (c) thereof, that those provisions are not applicable to the facts of the main proceedings because a Union citizen ceased to reside in the United Kingdom after the end of the transitional period, must the provisions of Article 30(4) of the Agreement, read in conjunction with Article 30(3) thereof, be interpreted as meaning that persons residing or working in the host State or in the State of employment are no longer covered by the provision of Article 30(1) if their legal relationships as employed persons (workers) have been terminated and, as a result, they have lost their right of residence and have left the State of employment or the host State after the end of the transitional period, or must those provisions be interpreted as meaning that the restriction laid down by Article 30(4) relates to the right of residence and the right of employment exercised after the end of the transitional period, without it being relevant when the rights were terminated, provided that they still existed after the end of the transitional period? |
| --- | --- |

3.

If it follows from the interpretation of the provisions of Article 30(2) of the Agreement, read in conjunction with Article 30(1)(a) and (c) thereof, that those provisions are not applicable to the facts of the main proceedings because a Union citizen ceased to reside in the United Kingdom after the end of the transitional period, must the provisions of Article 30(4) of the Agreement, read in conjunction with Article 30(3) thereof, be interpreted as meaning that persons residing or working in the host State or in the State of employment are no longer covered by the provision of Article 30(1) if their legal relationships as employed persons (workers) have been terminated and, as a result, they have lost their right of residence and have left the State of employment or the host State after the end of the transitional period, or must those provisions be interpreted as meaning that the restriction laid down by Article 30(4) relates to the right of residence and the right of employment exercised after the end of the transitional period, without it being relevant when the rights were terminated, provided that they still existed after the end of the transitional period?

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/19 |
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Official Journal of the European Union

C 138/19

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Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 January 2022 — Datenschutzbehörde (Austria)

(Case C-33/22)

(2022/C 138/22)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant on a point of law: Datenschutzbehörde (Austria)

Other parties to the proceedings: WK; President of the Nationalrat

Questions referred

| 1. | Do activities of a committee of inquiry set up by a Parliament of a Member State in the exercise of its right to scrutinise the executive fall within the scope of EU law within the meaning of the first sentence of Article 16(2) TFEU, irrespective of the subject matter of the inquiry, with the result that Regulation (EU) 2016/679 (1) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, (General Data Protection Regulation; ‘the GDPR’) is applicable to the processing of personal data by a parliamentary committee of inquiry of a Member State? |
| --- | --- |

1.

Do activities of a committee of inquiry set up by a Parliament of a Member State in the exercise of its right to scrutinise the executive fall within the scope of EU law within the meaning of the first sentence of Article 16(2) TFEU, irrespective of the subject matter of the inquiry, with the result that Regulation (EU) 2016/679 (1) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, (General Data Protection Regulation; ‘the GDPR’) is applicable to the processing of personal data by a parliamentary committee of inquiry of a Member State?

If Question 1 is answered in the affirmative:

| 2. | Do activities of a committee of inquiry which has been set up by a Parliament of a Member State in the exercise of its right to scrutinise the executive and which has as the subject matter of its inquiry the activities of a police State-protection authority, that is to say, activities concerning the protection of national security within the meaning of recital 16 of the GDPR, come within the scope of the exception set out in Article 2(2)(a) of the GDPR? |
| --- | --- |

2.

Do activities of a committee of inquiry which has been set up by a Parliament of a Member State in the exercise of its right to scrutinise the executive and which has as the subject matter of its inquiry the activities of a police State-protection authority, that is to say, activities concerning the protection of national security within the meaning of recital 16 of the GDPR, come within the scope of the exception set out in Article 2(2)(a) of the GDPR?

If Question 2 is answered in the negative:

| 3. | If — as in the present case — a Member State has established only one single supervisory authority in accordance with Article 51(1) of the GDPR, does the competence of that authority in respect of complaints within the meaning of Article 77(1) of the GDPR, in conjunction with Article 55(1) thereof, already arise directly from the GDPR? |
| --- | --- |

3.

If — as in the present case — a Member State has established only one single supervisory authority in accordance with Article 51(1) of the GDPR, does the competence of that authority in respect of complaints within the meaning of Article 77(1) of the GDPR, in conjunction with Article 55(1) thereof, already arise directly from the GDPR?

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(1)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/19 |
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C 138/19

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Action brought on 4 February 2022 — European Commission v Czech Republic

(Case C-75/22)

(2022/C 138/23)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: L. Armati, M. Mataija, M. Salyková, acting as Agents,

Defendant: Czech Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to implement correctly Article 3(1)(g) and (h), Article 6(b), Article 7(3), Article 21(6), Article 31(3), Article 45(2)(c), Article 45(2)(f) and, in part, Article 45(2)(e), Article 45(3), Article 50(1) in conjunction with point 1(d) and (e) of Annex VII and Article 51(1) of Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU (2) of the European Parliament and of the Council, the Czech Republic has failed to fulfil its obligations under those provisions of the directive |
| --- | --- |

—

declare that, by failing to implement correctly Article 3(1)(g) and (h), Article 6(b), Article 7(3), Article 21(6), Article 31(3), Article 45(2)(c), Article 45(2)(f) and, in part, Article 45(2)(e), Article 45(3), Article 50(1) in conjunction with point 1(d) and (e) of Annex VII and Article 51(1) of Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU (2) of the European Parliament and of the Council, the Czech Republic has failed to fulfil its obligations under those provisions of the directive

| — | order the Czech Republic to pay the costs. |
| --- | --- |

—

order the Czech Republic to pay the costs.

Pleas in law and main arguments

Article 3(1)(g) and (h) — The Commission claims that the Czech Republic has failed to implement the obligation to fix the legal status of persons undergoing periods of supervised practice and persons preparing for an aptitude test contained in those provisions of the Directive.

Article 6(b) — The Commission alleges that the Czech Republic has failed to exempt service providers from registration with a public social security body of the host Member State for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons.

Article 7(3) –In the Commission’s view, there was no clear implementation of this provision of the Directive, which enables architects and veterinary surgeons to use the professional title of the host Member States, in so far as they are architects and veterinary surgeons.

Article 21(6) and Article 31(3) — The Commission submits that the Czech Republic failed to implement correctly those provisions concerning pursuit of professional training for nurses responsible for general care in relation to the profession of general nursing.

Article 45(2)(c), Article 45(2)(f) and, in part, Article 45(2)(e) – The Commission claims that the Czech Republic has incorrectly implemented that provision of the Directive, since it has not ensured pharmacists access to the activities included in those provisions.

Article 45(3) – The Commission takes the view that the Czech Republic has incorrectly implemented that provision of the Directive since it has not ensured the access of pharmacists who have obtained a professional qualification in another Member State to a minimal number of activities, while that approach may be made contingent only on supplementary professional experience.

Article 50(1) in conjunction with Annex VII, point 1(d) and (e)- In the Commission’s opinion, that provision of the Directive has not been correctly implemented since the Czech Republic has not provided that the time limit for the provision of the documents required from the home Member State is to be two months.

Article 51(1) — The Commission alleges that the Czech Republic incorrectly implemented that provision of the Directive on the ground that it failed to provide that the time limit for the acknowledgement of receipt of the application for the recognition of professional qualifications and for informing the applicant of any missing document is one month.

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(1)  OJ L 255, 30.9.2005, p. 22.

(2)  Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System, OJ 2013 L 354, p. 132.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/21 |
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Official Journal of the European Union

C 138/21

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Appeal brought on 7 February 2022 by Jean-François Jalkh against the judgment of the General Court (Sixth Chamber) delivered on 1 December 2021 in Case T-230/21 Jalkh v Parliament

(Case C-82/22 P)

(2022/C 138/24)

Language of the case: French

Parties

Appellant: Jean-François Jalkh (represented by: F. Wagner, lawyer)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

| — | annul the judgment of the General Court of the European Union of 1 December 2021 in Case T-230/21, Jalkh v Parliament; |
| --- | --- |

—

annul the judgment of the General Court of the European Union of 1 December 2021 in Case T-230/21, Jalkh v Parliament;

| — | annul the decision of the European Parliament P9_TA(2021)0092 of 25 March 2021 on the request for waiver of the immunity of the applicant [2020/2110 (IMM)]; |
| --- | --- |

—

annul the decision of the European Parliament P9_TA(2021)0092 of 25 March 2021 on the request for waiver of the immunity of the applicant [2020/2110 (IMM)];

| — | order the European Parliament to pay all costs. |
| --- | --- |

—

order the European Parliament to pay all costs.

Pleas in law and main arguments

In support of his appeal, the appellant relies on three grounds of appeal.

The first ground of appeal alleges a breach of the rule that ‘civil and administrative proceedings must await the outcome of criminal proceedings’. According to the appellant, the General Court committed a manifest error of assessment which led it to disregard legal provisions in force in the EU and the case-law of an EU country, which could and should have been taken into account in the appellant’s case, in order to suspend the procedure for the waiver of his immunity, having regard to the complaint against X seeking to join a civil action to proceedings lodged with the investigating magistrate in Brussels on 15 December 2020, on the ground of forgery and use of forged documents.

The second ground of appeal alleges a manifest error of assessment of EU law by failing to recognise the infringement by the European Parliament, via its JURI Committee, of Article 7 of Communication 0011/2019 of 19/11/2019.

According to the appellant, the General Court committed a manifest error of assessment of EU law and its general principles, such as the principle of equal treatment and the principle of sound administration, which was of particular relevance to the proceedings, as the appellant argued that the handwritten phrase ‘very attentive’ in addition to the typewritten greeting on the letter from the Minister for Justice of 16 June 2020 should be regarded as revealing an eagerness on the part of the French Government to use the judicial proceedings at issue in the political debate and as such constituting fumus persecutionnis.

The third ground of appeal alleges an infringement of Article 9 of the Protocol on Immunities. According to the appellant, the General Court acknowledged that the facts complained of, namely Jean-François Jalkh’s use of his parliamentary assistance budget, were covered by the immunity provided for in Article 9 of the Protocol, but confined itself to a general formula to dismiss the complaint without explaining its reasons.

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General Court

| 28.3.2022 | EN | Official Journal of the European Union | C 138/22 |
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Action brought on 3 January 2022 — Loutsou v EUIPO (POLIS LOUTRON)

(Case T-13/22)

(2022/C 138/25)

Language of the case: Greek

Parties

Applicant: Alexandra Loutsou (Thessaloniki, Greece) (represented by: S. Psomakakis, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for the European Union figurative mark POLIS LOUTRON — Application for registration No 18 144 809

Contested decision: Decision of the First Board of Appeal of EUIPO of 20 October 2021 in Case R 544/2020-1

Form of order sought

The applicant claims that the Court should:

| — | declare the action admissible; |
| --- | --- |

—

declare the action admissible;

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | declare the action brought against the decision of the First Board of Appeal of EUIPO in Case R 544/2020-1, relating to EU trade mark application No 18 144 809, well founded and admissible; |
| --- | --- |

—

declare the action brought against the decision of the First Board of Appeal of EUIPO in Case R 544/2020-1, relating to EU trade mark application No 18 144 809, well founded and admissible;

| — | annul in part notification No L 110 of 8 November 2019 concerning the notification of the grounds for refusal of EU trade mark application No 18 144 809, with the result that that application for registration is upheld in its entirety and the mark at issue registered as a distinctive sign of the goods and services of the undertaking of the applicant in the territory of the European Union for the classes applied for; |
| --- | --- |

—

annul in part notification No L 110 of 8 November 2019 concerning the notification of the grounds for refusal of EU trade mark application No 18 144 809, with the result that that application for registration is upheld in its entirety and the mark at issue registered as a distinctive sign of the goods and services of the undertaking of the applicant in the territory of the European Union for the classes applied for;

| — | annul in part notification No L 123 of 20 January 2020 rejecting EU trade mark application No 18 144 809, with the result that that application for registration is upheld in its entirety and the mark at issue registered as a distinctive sign of the goods and services of the undertaking of the applicant in the territory of the European Union for the classes applied for; |
| --- | --- |

—

annul in part notification No L 123 of 20 January 2020 rejecting EU trade mark application No 18 144 809, with the result that that application for registration is upheld in its entirety and the mark at issue registered as a distinctive sign of the goods and services of the undertaking of the applicant in the territory of the European Union for the classes applied for;

| — | order EUIPO, the defendant, to register the mark POLIS LOUTRON as a trade mark in all the classes applied for and in respect of all the goods and services applied for; |
| --- | --- |

—

order EUIPO, the defendant, to register the mark POLIS LOUTRON as a trade mark in all the classes applied for and in respect of all the goods and services applied for;

| — | order EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO to pay the costs.

Plea in law

The contested decision incorrectly interpreted and applied the provisions of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council 14 June 2017 on the European Union trade mark, since the mark at issue is neither descriptive nor lacking distinctive character, and there are therefore no grounds to prevent it from being registered for the classes in question and in respect of the goods and services therein.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/23 |
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C 138/23

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Action brought on 14 January 2022 — Bensoussan v EUIPO — Lulu’s Fashion Lounge (LOULOU STUDIO)

(Case T-24/22)

(2022/C 138/26)

Language in which the application was lodged: English

Parties

Applicant: Ugo Bensoussan (Paris, France) (represented by: V. Bouchara and A. Maier, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Lulu’s Fashion Lounge LLC (Chico, California, United States)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union word mark LOULOU STUDIO — Application for registration No 18 048 245

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 12 November 2021 in Case R 480/2021-4

Form of order sought

The applicant claims that the Court should:

| — | uphold the appeal; |
| --- | --- |

—

uphold the appeal;

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | order EUIPO and the company LULU’S FASHION LOUNGE LLC to bear their own costs of the proceedings and to jointly pay those incurred by Mr. Ugo Bensoussan, including the costs incurred for the proceedings before the EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO and the company LULU’S FASHION LOUNGE LLC to bear their own costs of the proceedings and to jointly pay those incurred by Mr. Ugo Bensoussan, including the costs incurred for the proceedings before the EUIPO to pay the costs.

Plea in law

| — | Infringement of article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/23 |
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Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (PERFECT FARMA CERVIRON)

(Case T-36/22)

(2022/C 138/27)

Language in which the application was lodged: Romanian

Parties

Applicant: Romedor Pharma SRL (Focşani, Romania) (represented by: E. Dicu, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Perfect Care Distribution (Bucharest, Romania)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark PERFECT FARMA CERVIRON — EU trade mark No 10 864 511

Procedure before EUIPO: proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 17 November 2021 in Case R 522/2021-2

Form of order sought

The applicant claims that the Court should:

| — | uphold the action as formulated and reasoned; |
| --- | --- |

—

uphold the action as formulated and reasoned;

| — | annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 10 864 511. |
| --- | --- |

—

annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 10 864 511.

Plea in law

| — | Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/24 |
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Action brought on 19 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (Cerviron)

(Case T-37/22)

(2022/C 138/28)

Language in which the application was lodged: Romanian

Parties

Applicant: Romedor Pharma SRL (Focşani, Romania) (represented by: E. Dicu, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Perfect Care Distribution (Bucharest, Romania)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: other party to the proceedings before the Board of Appeal

Trade mark at issue: EU word mark CERVIRON — EU trade mark No 18 100 664

Procedure before EUIPO: proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 17 November 2021 in Case R 520/2021-2

Form of order sought

The applicant claims that the Court should:

| — | uphold the action as formulated and reasoned; |
| --- | --- |

—

uphold the action as formulated and reasoned;

| — | annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 18 100 664. |
| --- | --- |

—

annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 18 100 664.

Plea in law

| — | Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/25 |
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Official Journal of the European Union

C 138/25

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Action brought on 20 January 2022 — Romedor Pharma v EUIPO — Perfect Care Distribution (CERVIRON Perfect Care)

(Case T-38/22)

(2022/C 138/29)

Language in which the application was lodged: Romanian

Parties

Applicant: Romedor Pharma SRL (Focşani, Romania) (represented by: E. Dicu, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Perfect Care Distribution (Bucharest, Romania)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: other party to the proceedings before the Board of Appeal

Trade mark at issue: EU word mark CERVIRON PERFECT CARE — EU trade mark No 18 064 805

Procedure before EUIPO: proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 17 November 2021 in Case R 521/2021-2

Form of order sought

The applicant claims that the Court should:

| — | uphold the action as formulated and reasoned; |
| --- | --- |

—

uphold the action as formulated and reasoned;

| — | annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 18 064 805. |
| --- | --- |

—

annul the contested decision and, consequently, uphold the application for a declaration of invalidity in respect of EU trade mark No 18 064 805.

Plea in law

| — | Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 60(1)(c), in conjunction with Article 8(4), of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/25 |
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Action brought on 19 January 2022 — OA v Parliament

(Case T-39/22)

(2022/C 138/30)

Language of the case: English

Parties

Applicant: OA (represented by: G. Rossi and F. Regaldo, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | uphold the application; |
| --- | --- |

—

uphold the application;

| — | annul both contested decisions (save the part of the second contested decision in which the complaint on pensionable age has been upheld by the defendant); |
| --- | --- |

—

annul both contested decisions (save the part of the second contested decision in which the complaint on pensionable age has been upheld by the defendant);

| — | state that the applicant’s pension amount must be established according to the average of all salaries received by the applicant from 24.6.2010 to 31.3.2021 (pro-rata rule); |
| --- | --- |

—

state that the applicant’s pension amount must be established according to the average of all salaries received by the applicant from 24.6.2010 to 31.3.2021 (pro-rata rule);

| — | state that, for the calculation of the applicant’s pension amount, also the period of service at the institution, between 27.7.2004 and 1.07.2009, must be taken into account; |
| --- | --- |

—

state that, for the calculation of the applicant’s pension amount, also the period of service at the institution, between 27.7.2004 and 1.07.2009, must be taken into account;

| — | condemn the defendant to compensate the damages caused to the applicant, in the amount to be determined according to the formula referred to under paragraph 74 (of the application), or in any other amount the Court may find just and fair (in the denied and not believed hypothesis in which the Court does not order what mentioned under items 2, 3 and 4 above); and, |
| --- | --- |

—

condemn the defendant to compensate the damages caused to the applicant, in the amount to be determined according to the formula referred to under paragraph 74 (of the application), or in any other amount the Court may find just and fair (in the denied and not believed hypothesis in which the Court does not order what mentioned under items 2, 3 and 4 above); and,

| — | condemn the defendant to pay the costs (in any case). |
| --- | --- |

—

condemn the defendant to pay the costs (in any case).

Pleas in law and main arguments

In support of the action, the applicant relies on eight pleas in law.

| 1. | First plea in law, alleging that the contested decisions have fixed in advance certain detailed arrangements for calculating the amount of the applicant’s pension rights and the application is therefore admissible. |
| --- | --- |

1.

First plea in law, alleging that the contested decisions have fixed in advance certain detailed arrangements for calculating the amount of the applicant’s pension rights and the application is therefore admissible.

| 2. | Second plea in law, alleging that the contested decisions misinterpreted the case law of the Court on the admissibility. |
| --- | --- |

2.

Second plea in law, alleging that the contested decisions misinterpreted the case law of the Court on the admissibility.

| 3. | Third plea in law, alleging that the decision sought by the applicant has no adverse effect on the defendant, even in case of future changes of the former’s working status. |
| --- | --- |

3.

Third plea in law, alleging that the decision sought by the applicant has no adverse effect on the defendant, even in case of future changes of the former’s working status.

| 4. | Fourth plea in law, alleging that the period of service rendered by the applicant between 2004 and 2009 should be considered as a period of service rendered at the institution. |
| --- | --- |

4.

Fourth plea in law, alleging that the period of service rendered by the applicant between 2004 and 2009 should be considered as a period of service rendered at the institution.

| 5. | Fifth plea in law, alleging that the re-determination of the pensionable age, should lead to the indication of 63-years old, without prejudice to appeal the forthcoming decision of the defendant. |
| --- | --- |

5.

Fifth plea in law, alleging that the re-determination of the pensionable age, should lead to the indication of 63-years old, without prejudice to appeal the forthcoming decision of the defendant.

| 6. | Sixth plea in law, alleging the need of applying the so-called pro-rata rule. |
| --- | --- |

6.

Sixth plea in law, alleging the need of applying the so-called pro-rata rule.

| 7. | Seventh plea in law, alleging the possible partial disapplication (with reference to the words ‘final’ and ‘last’) of Article 77(2) of the Staff Regulations, in order to cure the violations of the principles of equality and proportionality. |
| --- | --- |

7.

Seventh plea in law, alleging the possible partial disapplication (with reference to the words ‘final’ and ‘last’) of Article 77(2) of the Staff Regulations, in order to cure the violations of the principles of equality and proportionality.

| 8. | Eight plea in law, containing a request for damages. |
| --- | --- |

8.

Eight plea in law, containing a request for damages.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/26 |
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Action brought on 27 January 2022 — Romania v Commission

(Case T-49/22)

(2022/C 138/31)

Language of the case: Romanian

Parties

Applicant: Romania (represented by: E. Gane and L. Baţagoi, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Decision 2021/2020 (1) in part, in so far as it relates to the exclusion from European Union financing of expenditure amounting to a total of EUR 178 320 110,85 incurred by the accredited paying agency of Romania and declared under the EAGF and the EAFRD, representing flat-rate financial corrections of 5 % and 2 % applied on the ground of infringement of EU law in connection with area-related payments for the claim years 2017 and 2018 (financial years 2018 and 2019); |
| --- | --- |

—

annul Decision 2021/2020 (1) in part, in so far as it relates to the exclusion from European Union financing of expenditure amounting to a total of EUR 178 320 110,85 incurred by the accredited paying agency of Romania and declared under the EAGF and the EAFRD, representing flat-rate financial corrections of 5 % and 2 % applied on the ground of infringement of EU law in connection with area-related payments for the claim years 2017 and 2018 (financial years 2018 and 2019);

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging the inappropriate exercise by the Commission of its power to exclude sums from EU financing on the basis of Article 52 of Regulation No 1306/2013. (2)

  The Commission conducted the conformity clearance procedure relating to the claim years 2017 and 2018 in a manner that was inappropriate:
  The Commission erred in considering that there was an irregularity concerning administrative checks regarding greening payments having an impact on the Funds. Even assuming that there was such an irregularity, the conduct of that EU institution — in particular the extremely vague wording of the findings and the coincidence in time between the 2017 and 2018 enquiries — made it impossible to submit certain relevant impact calculations while observing the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014. (3) In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry. Under no circumstances should the Commission have applied flat-rate corrections of 5 %.
  The conduct of that EU institution, in the context of the 2018 enquiry, with regard to the irregularities concerning the updating of the LPIS (4) – quality and correct identification of reference land parcels in the LPIS-GIS (5) — in particular the fact that the essential aspects were clarified by its final position (on 20 December 2019) relating to the 2017 enquiry — made it impossible to establish the extent of those irregularities and to submit certain relevant impact calculations while observing the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014. In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry.
  The conduct of that EU institution, in the context of the 2018 enquiry, with regard to the irregularity concerning the maximum area eligible for the area-related support measures financed by the EAFRD, consisting of imposing its own calculation method, cannot serve as a substitute for analysis of the data and calculations provided by the Romanian authorities on 10 June 2019. What is more, that conduct made it impossible for the Romanian authorities to identify, by the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014, the necessary adjustments to be made to the data and calculations provided. In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry.
  That institution wrongly considered that there was an irregularity as regards the performance of a sufficient number of on-the-spot checks in connection with the greening payment scheme, incorrectly referring to the control data and statistics communicated under Article 9(1) of Regulation No 809/2014. (6) Even assuming that there was such an irregularity, the Commission should not have applied flat-rate corrections of 5 %. |
| --- | --- |

1.

First plea in law, alleging the inappropriate exercise by the Commission of its power to exclude sums from EU financing on the basis of Article 52 of Regulation No 1306/2013. (2)

The Commission conducted the conformity clearance procedure relating to the claim years 2017 and 2018 in a manner that was inappropriate:

The Commission erred in considering that there was an irregularity concerning administrative checks regarding greening payments having an impact on the Funds. Even assuming that there was such an irregularity, the conduct of that EU institution — in particular the extremely vague wording of the findings and the coincidence in time between the 2017 and 2018 enquiries — made it impossible to submit certain relevant impact calculations while observing the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014. (3) In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry. Under no circumstances should the Commission have applied flat-rate corrections of 5 %.

The conduct of that EU institution, in the context of the 2018 enquiry, with regard to the irregularities concerning the updating of the LPIS (4) – quality and correct identification of reference land parcels in the LPIS-GIS (5) — in particular the fact that the essential aspects were clarified by its final position (on 20 December 2019) relating to the 2017 enquiry — made it impossible to establish the extent of those irregularities and to submit certain relevant impact calculations while observing the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014. In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry.

The conduct of that EU institution, in the context of the 2018 enquiry, with regard to the irregularity concerning the maximum area eligible for the area-related support measures financed by the EAFRD, consisting of imposing its own calculation method, cannot serve as a substitute for analysis of the data and calculations provided by the Romanian authorities on 10 June 2019. What is more, that conduct made it impossible for the Romanian authorities to identify, by the deadline laid down in the third subparagraph of Article 34(3) of Regulation No 908/2014, the necessary adjustments to be made to the data and calculations provided. In that context, the Commission unduly refused, in breach of Article 34(6) of that regulation, to analyse the data and calculations provided by the Romanian authorities through the request for conciliation (of 5 February 2020) relating to the 2018 enquiry.

That institution wrongly considered that there was an irregularity as regards the performance of a sufficient number of on-the-spot checks in connection with the greening payment scheme, incorrectly referring to the control data and statistics communicated under Article 9(1) of Regulation No 809/2014. (6) Even assuming that there was such an irregularity, the Commission should not have applied flat-rate corrections of 5 %.

| 2. | Second plea in law, alleging a failure to observe the principle of proportionality.
  Romania submits that the contested decision is in breach of the principle of proportionality, in view of the fact that, through the application of certain flat-rate corrections of 5 % with regard to the payments from the EAGF and of 2 % with regard to the payments from the EAFRD for the claim years 2017 and 2018 (financial years 2018 and 2019), an overestimation of the EU funding losses resulting from the irregularities found was created, the amounts of 5 % and 2 % disregarding the nature and the gravity of the infringement as well as the financial implications of that infringement for the budget of the Union. |
| --- | --- |

2.

Second plea in law, alleging a failure to observe the principle of proportionality.

Romania submits that the contested decision is in breach of the principle of proportionality, in view of the fact that, through the application of certain flat-rate corrections of 5 % with regard to the payments from the EAGF and of 2 % with regard to the payments from the EAFRD for the claim years 2017 and 2018 (financial years 2018 and 2019), an overestimation of the EU funding losses resulting from the irregularities found was created, the amounts of 5 % and 2 % disregarding the nature and the gravity of the infringement as well as the financial implications of that infringement for the budget of the Union.

| 3. | Third plea in law, alleging a failure to fulfil the obligation to state reasons laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union.
  The Commission failed to fulfil the obligation to state reasons laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union, because it failed to provide a suitable and sufficient statement of reasons for its finding that there were irregularities and its rejection of the arguments and calculations put forward by the Romanian authorities, on the one hand, and its finding that Article 34(6) of Regulation No 908/2014 was not applicable in relation to the particular characteristics of the conformity clearance procedure which covered the claim years 2017 and 2018, on the other. |
| --- | --- |

3.

Third plea in law, alleging a failure to fulfil the obligation to state reasons laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union.

The Commission failed to fulfil the obligation to state reasons laid down by the second paragraph of Article 296 of the Treaty on the Functioning of the European Union, because it failed to provide a suitable and sufficient statement of reasons for its finding that there were irregularities and its rejection of the arguments and calculations put forward by the Romanian authorities, on the one hand, and its finding that Article 34(6) of Regulation No 908/2014 was not applicable in relation to the particular characteristics of the conformity clearance procedure which covered the claim years 2017 and 2018, on the other.

---

(1)  Published in Volume L 413 of the Official Journal of the European Union of 19 November 2021.

(2)  Published in Volume L 347 of the Official Journal of the European Union of 20 December 2013.

(3)  Published in Volume L 255 of the Official Journal of the European Union of 28 August 2014.

(4)  Land Parcel Identification System.

(5)  Land Parcel Identification System — Geographic Information System.

(6)  Published in Volume L 227 of the Official Journal of the European Union of 31 July 2014.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/28 |
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Action brought on 31 January 2022 — Labaš v EUIPO (FRESH)

(Case T-58/22)

(2022/C 138/32)

Language of the case: English

Parties

Applicant: Miroslav Labaš (Košice, Slovakia) (represented by: M. Vasiľ, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union figurative mark FRESH — Application for registration No 18 311 155

Contested decision: Decision of the First Board of Appeal of EUIPO of 24 November 2021 in Case R 610/2021-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision in its entirety; |
| --- | --- |

—

annul the contested decision in its entirety;

| — | or alternatively, annul part of the contested decision with regards to the Classes 35 and 39 specified in the contested application; |
| --- | --- |

—

or alternatively, annul part of the contested decision with regards to the Classes 35 and 39 specified in the contested application;

| — | order the defendant to pay the costs of the applicant. |
| --- | --- |

—

order the defendant to pay the costs of the applicant.

Pleas in law

| — | Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Lack of the definition of the direct link between the sign FRESH and its inadmissibility to be registered for goods and services in Classes 35 and 39. |
| --- | --- |

—

Lack of the definition of the direct link between the sign FRESH and its inadmissibility to be registered for goods and services in Classes 35 and 39.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/28 |
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Action brought on 1 February 2022 — Guma Holdings v EUIPO — X-Trade Brokers Dom Maklerski (XTRADE)

(Case T-67/22)

(2022/C 138/33)

Language in which the application was lodged: English

Parties

Applicant: Guma Holdings LTD (Limassol, Cyprus) (represented by: M. Oleksyn and M. Stępkowski, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: X-Trade Brokers Dom Maklerski S.A. (Warsaw, Poland)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant before the General Court

Trade mark at issue: European Union figurative mark XTRADE in the colours dark grey, light grey, blue, shades of blue — European Union trade mark No 13 061 387

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 8 November 2021 in Case R 981/2020-5

Form of order sought

The applicant claims that the Court should:

| — | alter the contested decision and reject the application for a declaration of invalidity in its entirety; |
| --- | --- |

—

alter the contested decision and reject the application for a declaration of invalidity in its entirety;

| — | order EUIPO and the intervener to bear their own costs and to pay those incurred by the applicant, including those incurred in the proceedings before EUIPO. |
| --- | --- |

—

order EUIPO and the intervener to bear their own costs and to pay those incurred by the applicant, including those incurred in the proceedings before EUIPO.

Pleas in law

| — | Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 27(4) of Commission Delegated Regulation (EU) 2018/625; |
| --- | --- |

—

Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 27(4) of Commission Delegated Regulation (EU) 2018/625;

| — | Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 41(2) of the Charter of Fundamental Rights of the European Union (1); |
| --- | --- |

—

Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 41(2) of the Charter of Fundamental Rights of the European Union (1);

| — | Infringement of Articles 8(4) and 60(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Articles 16(1)(b) and 7(2)(d) of Commission Delegated Regulation (EU) 2018/625. |
| --- | --- |

—

Infringement of Articles 8(4) and 60(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Articles 16(1)(b) and 7(2)(d) of Commission Delegated Regulation (EU) 2018/625.

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(1)  JO 2012 C 326, p. 391.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/29 |
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Action brought on 3 February 2022 — Novasol v ECHA

(Case T-70/22)

(2022/C 138/34)

Language of the case: French

Parties

Applicant: Novasol (Kraainem, Belgium) (represented by: C. Alter and G. Bouton, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should:

| — | annul, on the basis of Article 263 of the Treaty on the Functioning of the European Union, ECHA’s decision SME D (2021)8531-DC, of 25 November 2021, in which it found that the applicant cannot be recognised as an SME and is not eligible for the reduced fees for a medium-sized enterprise, as claimed at the time of the submissions; |
| --- | --- |

—

annul, on the basis of Article 263 of the Treaty on the Functioning of the European Union, ECHA’s decision SME D (2021)8531-DC, of 25 November 2021, in which it found that the applicant cannot be recognised as an SME and is not eligible for the reduced fees for a medium-sized enterprise, as claimed at the time of the submissions;

| — | order ECHA to pay all costs. |
| --- | --- |

—

order ECHA to pay all costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging that ECHA erred in law in the contested decision, on the ground that it misinterpreted the legal rules applicable to the assessment of the size of small and medium-sized enterprises (‘SMEs’) referred to in the REACH Regulation, (1) in Recommendation 2003/361 (2) and in Regulation No 340/2008. (3) |
| --- | --- |

1.

First plea in law, alleging that ECHA erred in law in the contested decision, on the ground that it misinterpreted the legal rules applicable to the assessment of the size of small and medium-sized enterprises (‘SMEs’) referred to in the REACH Regulation, (1) in Recommendation 2003/361 (2) and in Regulation No 340/2008. (3)

| 2. | Second plea in law, alleging a manifest error of assessment of the facts of the case, in that the contested decision is based on an incorrect reading of the accuracy of the facts on which the classification as an SME is based, even though ECHA had all the information necessary to assess the applicant’s size. |
| --- | --- |

2.

Second plea in law, alleging a manifest error of assessment of the facts of the case, in that the contested decision is based on an incorrect reading of the accuracy of the facts on which the classification as an SME is based, even though ECHA had all the information necessary to assess the applicant’s size.

| 3. | Third plea in law, alleging a breach of the duty to state reasons and of the principle of sound administration, in so far as, despite the detailed and documented observations made by the applicant in order to determine the dimensions of the enterprise, ECHA did not take any account of the arguments submitted. |
| --- | --- |

3.

Third plea in law, alleging a breach of the duty to state reasons and of the principle of sound administration, in so far as, despite the detailed and documented observations made by the applicant in order to determine the dimensions of the enterprise, ECHA did not take any account of the arguments submitted.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, corrigendum OJ 2007 L 136, p. 3).

(2)  Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124, p. 36).

(3)  Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2008 L 107, p. 6).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/30 |
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Action brought on 8 February 2022 — Siemens v Parliament

(Case T-74/22)

(2022/C 138/35)

Language of the case: French

Parties

Applicant: Siemens SAS (Saint-Denis, France) (represented by: E. Berkani, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

primarily,

| — | annul the two decisions of 8 December 2021 rejecting the tenders of the temporary group of undertakings, which Siemens SAS is a member of, in respect of Lot 1 and Lot 2; |
| --- | --- |

—

annul the two decisions of 8 December 2021 rejecting the tenders of the temporary group of undertakings, which Siemens SAS is a member of, in respect of Lot 1 and Lot 2;

| — | annul the two decisions awarding Lot 1 to Santerne Alsace and Lot 2 to Detection Electronique Française (DEF);
  in the alternative, |
| --- | --- |

—

annul the two decisions awarding Lot 1 to Santerne Alsace and Lot 2 to Detection Electronique Française (DEF);

in the alternative,

| — | order the European Parliament to pay a sum of EUR 1 967 994 to Siemens SAS as compensation for the damages arising from the loss of opportunity to obtain Lots 1 and 2 of the disputed contract;
  in any event, |
| --- | --- |

—

order the European Parliament to pay a sum of EUR 1 967 994 to Siemens SAS as compensation for the damages arising from the loss of opportunity to obtain Lots 1 and 2 of the disputed contract;

in any event,

| — | order the European Parliament to pay the costs of the proceedings. |
| --- | --- |

—

order the European Parliament to pay the costs of the proceedings.

Pleas in law and main arguments

In support of its action against the two decisions of the European Parliament of 8 December 2021 rejecting the tenders it submitted for Lots 1 and 2 in the context of tendering procedure No 06A70/2021/M004 concerning the renewal of the fire safety system in the European Parliament buildings in Strasbourg, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging an illegality in the exclusion of Siemens SAS from Lots 1 and 2. The applicant alleges, first, a manifest error of assessment in the scoring of the tenders by the European Parliament and, second, breach of the principle of transparency by reason of the transmission by the Parliament to Siemens SAS of a flawed simulation tool which played a decisive role in the preparation of the tenders. |
| --- | --- |

1.

First plea in law, alleging an illegality in the exclusion of Siemens SAS from Lots 1 and 2. The applicant alleges, first, a manifest error of assessment in the scoring of the tenders by the European Parliament and, second, breach of the principle of transparency by reason of the transmission by the Parliament to Siemens SAS of a flawed simulation tool which played a decisive role in the preparation of the tenders.

| 2. | Second plea in law, alleging the non-contractual liability of the Parliament. The applicant seeks compensation for the damage suffered as a result of the loss of opportunity to obtain the award of Lots 1 and 2. |
| --- | --- |

2.

Second plea in law, alleging the non-contractual liability of the Parliament. The applicant seeks compensation for the damage suffered as a result of the loss of opportunity to obtain the award of Lots 1 and 2.

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/31 |
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Action brought on 9 February 2022 — Asesores Comunitarios v Commission

(Case T-77/22)

(2022/C 138/36)

Language of the case: English

Parties

Applicant: Asesores Comunitarios SL (Madrid, Spain) (represented by: J. Monrabà Bagan, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the Decision No C(2021) 8946 final of 3 December 2021 refusing the disclosure of the recovery and resilience plan of Spain; and |
| --- | --- |

—

annul the Decision No C(2021) 8946 final of 3 December 2021 refusing the disclosure of the recovery and resilience plan of Spain; and

| — | order the defendant to pay the costs. |
| --- | --- |

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging that the defendant misapplied Article 4(1)(a), forth indent, of Regulation (EC) No 1049/2001 (1) by undermining the public interest as regard the financial and economic policy. It is furthermore alleged that the contested decision has not accurately stated the facts related to a hypothetical threat to the economic stability of the Kingdom of Spain because of the disclosure of its Recovery and Resilience Plan to the applicant. |
| --- | --- |

1.

First plea in law, alleging that the defendant misapplied Article 4(1)(a), forth indent, of Regulation (EC) No 1049/2001 (1) by undermining the public interest as regard the financial and economic policy. It is furthermore alleged that the contested decision has not accurately stated the facts related to a hypothetical threat to the economic stability of the Kingdom of Spain because of the disclosure of its Recovery and Resilience Plan to the applicant.

| 2. | Second plea in law, alleging that the defendant misapplied Article 4(1)(b) of Regulation (EC) No 1049/2001 by considering that public disclosure of the requested documents would infringe the privacy and the integrity of individuals mentioned in these documents. |
| --- | --- |

2.

Second plea in law, alleging that the defendant misapplied Article 4(1)(b) of Regulation (EC) No 1049/2001 by considering that public disclosure of the requested documents would infringe the privacy and the integrity of individuals mentioned in these documents.

| 3. | Third plea in law, alleging that the defendant misapplied Article 4(3) of Regulation (EC) No 1049/2001 by considering that public disclosure of the requested documents would seriously undermine the ongoing decision-making process. |
| --- | --- |

3.

Third plea in law, alleging that the defendant misapplied Article 4(3) of Regulation (EC) No 1049/2001 by considering that public disclosure of the requested documents would seriously undermine the ongoing decision-making process.

| 4. | Fourth plea in law, alleging that the defendant misapplied Article 4(3) of Regulation (EC) No 1049/2001 by considering that no overriding public interest in disclosing the requested documents has been established prevailing over the need to protect the ongoing decision-making process. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendant misapplied Article 4(3) of Regulation (EC) No 1049/2001 by considering that no overriding public interest in disclosing the requested documents has been established prevailing over the need to protect the ongoing decision-making process.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43-48).

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| 28.3.2022 | EN | Official Journal of the European Union | C 138/32 |
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Action brought on 14 February 2022 — OF v Commission

(Case T-80/22)

(2022/C 138/37)

Language of the case: French

Parties

Applicant: OF (represented by: N. de Montigny, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | primarily,






  — | annul the decision of 13 April 2021 of PMO.1 refusing an extension of family allowances for the financial support of stepchildren; |
| --- | --- | --- |

—

primarily,

—

annul the decision of 13 April 2021 of PMO.1 refusing an extension of family allowances for the financial support of stepchildren;

| — | annul the decision of 10 May 2021 of PMO.1 to implement Article 85 adopted pursuant to the decision of 13 April 2021; |
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annul the decision of 10 May 2021 of PMO.1 to implement Article 85 adopted pursuant to the decision of 13 April 2021;

| — | annul, in so far as necessary, the decision rejecting the complaint dated 12 November 2021; |
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annul, in so far as necessary, the decision rejecting the complaint dated 12 November 2021;

| — | in the alternative,






  — | order the defendant to pay compensation for psychological and material damage resulting from breach of administrative duty on the part of the administration, assessed at EUR 56 504,61; |
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in the alternative,

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order the defendant to pay compensation for psychological and material damage resulting from breach of administrative duty on the part of the administration, assessed at EUR 56 504,61;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

In support of her action for annulment of the decision of 13 April 2021 of PMO.1 refusing to extend family allowances for the financial support of stepchildren, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging errors of law and fact, erroneous and contradictory reasoning, a heavier burden of proof, failure to taken into account the specific circumstances of the case and infringement of the concept of maintenance. |
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1.

First plea in law, alleging errors of law and fact, erroneous and contradictory reasoning, a heavier burden of proof, failure to taken into account the specific circumstances of the case and infringement of the concept of maintenance.

| 2. | Second plea in law, alleging infringement of the principle of forseeability, of legal certainty and of consistent application of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and failure to provide adequate reasons. |
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2.

Second plea in law, alleging infringement of the principle of forseeability, of legal certainty and of consistent application of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and failure to provide adequate reasons.

| 3. | Third plea in law, alleging infringement of the principle of sound administration, of the principle of affirmative action, unlawful rejection of the legalised certificate, infringement of the duty to have regard for the welfare of officials and of the right of every person to be heard before any decision affecting their interests or situation is taken. |
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3.

Third plea in law, alleging infringement of the principle of sound administration, of the principle of affirmative action, unlawful rejection of the legalised certificate, infringement of the duty to have regard for the welfare of officials and of the right of every person to be heard before any decision affecting their interests or situation is taken.

| 4. | Fourth plea in law, alleging a manifest error in the assessment of the applicant’s situation and the reality of financial support for the stepchildren. |
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4.

Fourth plea in law, alleging a manifest error in the assessment of the applicant’s situation and the reality of financial support for the stepchildren.

In support of her application for annulment of the decision of PMO.1 of 10 May 2021 to implement Article 85 adopted pursuant to the decision of 13 April 2021, the applicant relies on two pleas in law

| 1. | First plea in law, alleging infringement of the right to be heard. |
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1.

First plea in law, alleging infringement of the right to be heard.

| 2. | Second plea in law, alleging infringement of Article 85 of the Staff Regulations and of the conditions laid down for the recovery of overpayments. |
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2.

Second plea in law, alleging infringement of Article 85 of the Staff Regulations and of the conditions laid down for the recovery of overpayments.

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